                  IN THE COURT OF APPEALS OF TENNESSEE
                             AT KNOXVILLE
                               November 18, 2015 Session

 JULIA H. “ROBIN” MEYERS, ET AL. v. FIRST TENNESSEE BANK, N.A.

            Interlocutory Appeal from the Chancery Court for Greene County
                     No. 20100144 Douglas T. Jenkins, Chancellor


                    No. E2014-01943-COA-R9-CV – Filed May 27, 2016


This is a Tenn. R. App. P. 9 appeal by First Tennessee Bank, N.A. (the Trustee) from the
trial court‟s order denying the Trustee‟s motion for summary judgment. The
beneficiaries of the Ray Haney TUW1 Residual Trust (the Trust) filed suit against the
Trustee for breach of trust. The Trustee asserts that the suit is time-barred; it relies upon
Tenn. Code Ann. § 35-15-1005 (2007).2 The trial court denied the Trustee‟s motion,
holding that there are genuine issues of material fact with respect to whether the suit was
timely filed. The Trustee filed an application for an interlocutory appeal, which the trial
court granted. We followed suit. We now affirm the trial court‟s decision denying
summary judgment.

     Tenn. R. App. P. 9 Interlocutory Appeal; Judgment of the Chancery Court
                             Affirmed; Case Remanded

CHARLES D. SUSANO, JR., J., delivered the opinion of the court, in which D. MICHAEL
SWINEY, C.J., and JOHN W. MCCLARTY, J., joined.

Melinda Meador, Knoxville, Tennessee, for the appellant, First Tennessee Bank National
Association.

Jeffrey A. Cobble, Greeneville, Tennessee, for the appellees, Julia H. “Robin” Meyers,
Laura E. Meyers, and Emily M. Stevens.


       1
           Trust Under Will.
       2
          Tenn. Code Ann. § 35-15-1005 and others in this chapter – the Tennessee Uniform
Trust Code, Tenn. Code. Ann. § 35-15-101, et seq. – have been changed since the complaint in
this case was filed on May 13, 2010. We will apply the version of the law in effect when the
complaint was filed.
                                       OPINION

                                            I.

      The issues in this case bring into sharp focus the provisions of Tenn. Code Ann. §
35-15-1005. We state the statute in its entirety:

             (a) A beneficiary may not commence a proceeding against a
             trustee for breach of trust more than one (1) year after the
             date the beneficiary or a representative of the beneficiary was
             sent a report that adequately disclosed facts indicating the
             existence of a potential claim for breach of trust.

             (b) A report adequately discloses facts indicating the
             existence of a potential claim for breach of trust if it provides
             sufficient information so that the beneficiary or the
             beneficiary‟s representative knows of the potential claim or
             has sufficient information to be presumed to know of it, or to
             be put on notice to inquire into its existence.

             (c) If subsection (a) does not apply, a judicial proceeding by a
             beneficiary against a trustee for breach of trust must be
             commenced within three (3) years after the first to occur of:

                    (1) The removal, resignation, or death of the
                        trustee;

                    (2) The termination of the beneficiary‟s interest
                        in the trust; or

                    (3) The termination of the trust.

The critical decision in this case depends upon the interpretation of the language of this
statute and the application of that language to the facts of this case. We will undertake
that analysis later in this opinion; but, first, we will discuss the facts and procedural
history of this litigation.

                                            II.

       The Trust became operative in 1980 upon the death of the settlor, Ray Haney. Its
assets consisted of two warehouses – one designated “Haney #1” and the other named

                                            2
“Haney-Bewley #3.” The warehouses were under lease during the whole life of the
Trust. The Trust was originally administered by Valley Fidelity Bank, the predecessor in
interest to the Trustee. The Trust had three beneficiaries – Julia H. “Robin” Meyers and
her now adult daughters, Laura E. Meyers and Emily M. Stevens (collectively the
beneficiaries). During the life of the Trust, Robin Meyers‟ husband, Emil Meyers, was
involved in the management of, and communications regarding, the assets of the Trust;
however, he was not a beneficiary, and there is nothing in the record indicating that he
was ever designated to represent any of the three beneficiaries.

        In a November 15, 2005 letter addressed to the beneficiaries and Mr. Meyers, the
Trustee stated that “this letter to all of the qualified beneficiaries will serve as our notice
of resignation as trustee to be effective December 31, 2005.” No successor trustee was
ever appointed. The beneficiaries assert that they had agreed with the Trustee to
terminate the Trust and were, in early 2006, working with the Trustee toward that end.
The beneficiaries state that the Trustee‟s attorney refused to complete the termination
process because the beneficiaries would not agree to release all claims against the
Trustee. As a result, the termination process stalled. In November 2006, the
beneficiaries sued to terminate the Trust. The Trust was terminated by court order on
May 16, 2007. By the following November, all of the assets of the Trust had been
transferred. Until the assets of the Trust had been distributed, the Bank continued to act
in its capacity as the Trustee pursuant to its residual powers.

      On May 13, 2010, the beneficiaries filed a complaint against the Trustee, seeking
damages for breach of trust. Specifically, the beneficiaries brought suit against the
Trustee for

              not properly perform[ing] its duties as the Trustee of the
              [Trust] which caused the following monetary damages related
              to the lease of warehouse space in the two warehouses owned
              by the Trust and managed by the Defendant Trustee:

              Lessee short pays rent on Haney #1
                Warehouse                                        $    23,548.90
              Lease rental increase not collected by
                [the Trustee]                                          2,088.60
              Haney # 1 Warehouse damage by lessee                    49,525.00
              Haney-Bewley #3 Warehouse damage by
                lessee                                               124,775.00
              [The Trustee‟s] Property Inspection Fees,
                Haney #1                                                887.50
              [The Trustee‟s] Property Inspection Fees,
                Haney-Bewley #3                                          737.30


                                              3
              Life Tenant Travel Expenses (thru
               March 2007)                                         8,192.62
              Life Tenant-Trial Travel Expenses                      936.72
              Life Tenant Attorney-CPA Expenses                   12,519.24
                                                Total          $ 223,210.88

(Lettering of paragraphs in original omitted.)

       The Trustee responded on June 21, 2010, by filing a motion to dismiss or for
summary judgment. The Trustee claimed, among other things, that the suit was not
timely filed under Tenn. Code Ann. § 35-15-1005. The trial court denied the motion,
finding

              there do exist genuine issues of material fact in the instant
              action which include, and are not limited to, did the [T]rustee
              in this action send the beneficiaries a report as contemplated
              by [Tenn. Code Ann. §] 35-15-1005.

              And another issue is when did the [T]rustee resign, and when
              did the trust actually terminate? As genuine issues of
              material fact exist in this case, this Court concludes that the
              movant is not entitled to a judgment as a matter of law, and
              therefore, the motion requesting summary judgment is
              overruled.

       On November 19, 2010, the Trustee filed an answer to the complaint, listing
fourteen affirmative defenses, including the statute of limitations. After discovery, the
Trustee again moved for summary judgment. It continued to argue that the beneficiaries‟
complaint was not timely filed. The trial court again denied the motion, finding as
follows:

              The gravamen of the Complaint appears to be focused upon
              the claimed mismanagement of trust real estate as there does
              not appear to have been shown that the [T]rustee sent a report
              that adequately disclosed facts indicating the existence of a
              potential claim for breach of trust concerning management of
              the warehouses or their condition.

              This court concludes that the three-year Statute of Limitations
              controls. The Motion for Summary Judgment is overruled.

      The Trustee was not discouraged. It filed a third and final motion for summary
judgment on May 22, 2014. In its third motion, it argued that the beneficiaries had actual

                                             4
knowledge of their potential claims as early as December 28, 2005, and that this
knowledge rendered their complaint filed May 13, 2010, time-barred by the one-year
statute of limitations in subsection (a) of Tenn. Code Ann. § 35-15-1005. Additionally,
they argued that an October 10, 2008 letter sent by it to the beneficiaries, as well as other
regular communications between the parties, amounted to a “report” for the purpose of
triggering the one-year statute of limitations. Finally, the Trustee argued that, even
assuming the suit was not time-barred by subsection (a) of the statute, it would still be
barred under the three-year statute of limitations in subsection (c) because the suit was
filed more than three years after the Trustee resigned, which, according to the Trustee,
took place effective December 31, 2005. The trial court denied the third motion and
found “there is a genuine issue of material fact regarding whether [the Trustee] complied
with the reporting requirement contained within Tenn. Code Ann. § 35-15-1005(a) [so as]
to trigger the running of the statute of limitations” and “there is a genuine issue of
material fact regarding whether Defendant‟s resignation on December 31, 2005, was
effective for purposes of triggering the statute of limitations. . . .”

         The Trustee requested an interlocutory appeal, which was granted by the trial
court. The court stated in its order that, had it granted summary judgment, its judgment
“would have been dispositive of the case in its entirety” and that if the trial court‟s
“decision is reversed and the case barred by the statute of limitations, there will be no
trial, thus avoiding needless, expensive, and protracted litigation.” The trial court, in an
excellent analysis of the issues, stated the following:

              This is a case of first impression in Tennessee. The
              Tennessee Uniform Trust Code, T[enn].C[ode] A[nn]. § 35-
              15-101, et seq. (2013) (“Trust Code”), was adopted in 2004,
              and only a few cases interpreting the Trust Code have been
              reported. There have been no appellate court opinions
              regarding the provisions of the applicable statute of
              limitations found at T[enn].C[ode] A[nn]. § 35-15-1005. In
              the absence of appellate court guidance, this Court has
              adopted a literal reading of both the one-year statute of
              limitations, § 35-15-1005(a), and the three-year statute of
              limitation, § 35-15-1005(c), and reached the following
              conclusions.

              (a) In order to trigger the running of the one-year statute, the
              provisions of T[enn].C[ode] A[nn]. § 35-15-1005(a) require
              the Trustee to make “a report” to the beneficiaries that
              “adequately disclosed facts indicating the existence of a
              potential claim for breach of trust.” Plaintiffs assert that no
              such report was ever made. Defendant asserts that Plaintiffs
              had actual knowledge of the damages as of December 28,

                                             5
               2005, and thus the one-year limitations period began to run
               from that date. Alternatively, Defendant asserts that a
               “report” in the form of correspondence was delivered to
               Plaintiffs in October 2007,3 at which time the one-year
               limitations period began to run. This Court has concluded
               that there is an issue of fact regarding whether Defendant
               issued a “report” that adequately disclosed the damages of
               which Plaintiffs complain, and thus the three-year limitations
               period may apply.

               (b) If subsection (a) of § 35-15-1005 does not apply, then
               claims must be brought against a trustee within three (3) years
               of either resignation of the trustee or termination of the trust.
               In this case, it is undisputed that Defendant notified Plaintiffs
               by letter of its intent to resign as [the] Trustee, effective
               December 31, 2005. Plaintiffs opted to move for termination
               of the Trust, and the Trust was terminated by Order of this
               [c]ourt on May 16, 2007. Defendant takes the position that its
               resignation was effective on December 31, 2005, even though
               it continued to act as [the] Trustee until termination of the
               Trust. Plaintiffs say that there was no resignation until the
               Trustee completed its service and divested the Trust of all
               assets in late 2007. Thus, the Court finds there is a question
               of fact regarding whether the resignation was effective as of
               December 31, 2005. Therefore, if T[enn].C[ode] A[nn]. § 35-
               15-1005(a) does not apply in this instance, the operative date
               for purposes of triggering the running of the statute of
               limitations in this case is the date the Trust terminated on
               May 16, 2007, or, alternatively, on the date Defendant
               completed its service and divested the Trust of all assets in
               late 2007.

               Again, this Court recognizes that this is a case of first
               impression, and guidance from the appellate court will aid in
               the development of a uniform body of law interpreting the
               Trust Code‟s statute of limitations.


       3
         Before the trial court and now before us, the Trustee has maintained that it sent a letter
dated October 2008 – rather than October 2007 – to the beneficiaries and that this letter triggered
the running of the one-year statute of limitations. There is no mention in the Trustee‟s May 22,
2014 third and last motion for summary judgment that the beneficiaries were sent such a letter in
October 2007.
                                                6
(Footnote added.)

                                             III.

      As previously noted, we granted the Trustee‟s request for an interlocutory appeal.
We certified the following issue for review:

              [W]hether the cause of action for breach of fiduciary duty
              against [the Trustee] was barred by the running of the statute
              of limitations set forth in Tennessee Code Annotated section
              35-15-1005.

The Trustee, in its brief, states that “the issues presented for review” are:

              Does a beneficiary‟s actual knowledge of a potential claim
              for breach of trust trigger the one-year statute of limitations
              for breach of trust claims, pursuant to T.C.A. § 35-15-
              1005(a)?

              Does the concept of “inquiry notice” form the basis for the
              reporting disclosure found in the one-year statute of
              limitations at T.C.A. § 35-15-1005(a) and § 35-15-1005(b)?

              Alternatively, does a detailed response to written allegations
              of Trust mismanagement constitute a “report” for purposes of
              triggering the one-year statute of limitations?

(Emphasis in original; paragraph numbering in original omitted.)

       “For interlocutory appeals, the only issues that can be raised are those certified in
the trial court‟s order granting permission to seek an interlocutory appeal and in the
appellate court‟s order granting the interlocutory appeal.” Heatherly v. Merrimack Mut.
Fire Ins. Co., 43 S.W.3d 911, 914 (Tenn. Ct. App. 2000) (citing Tenn. Dep’t of Mental
Health & Mental Retardation v. Hughes, 531 S.W.2d 299, 300 (Tenn. 1975)). “To the
extent the issues are broader, they cannot be considered.” Montcastle v. Baird, 723
S.W.2d 119, 122 (Tenn. Ct. App. 1986). The issues raised by the Trustee are subsets of
the issue certified by the trial court and us. Since the issues of the Trustee do not
“broaden” the certified issue, we will consider them.


                                             IV.

       The principles pertaining to summary judgment are as follows:

                                               7
              A summary judgment is appropriate only when the moving
              party can demonstrate that there is no genuine issue of
              material fact and that it is entitled to 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). When ruling on a summary
              judgment motion, the trial court must accept the nonmoving
              party‟s evidence as true and resolve any doubts concerning
              the existence of a genuine issue of material fact in favor of
              the nonmoving party. Shipley v. Williams, 350 S.W.3d 527,
              536 (Tenn. 2011) (quoting Martin v. Norfolk S. Ry. [Co.],
              271 S.W.3d 76, 84 (Tenn. 2008)). “A grant of summary
              judgment is appropriate only when the facts and the
              reasonable inferences from those facts would permit a
              reasonable person to reach only one conclusion.” Giggers v.
              Memphis Hous. Auth., 277 S.W.3d 359, 364 (Tenn. 2009)
              (citing Staples v. CBL & Assocs., Inc., 15 S.W.3d 83, 89
              (Tenn. 2000)). “The granting or denying of a motion for
              summary judgment is a matter of law, and our standard of
              review is de novo with no presumption of correctness.”
              Kinsler v. Berkline, LLC, 320 S.W.3d 796, 799 (Tenn. 2010).

Lamar Tenn., LLC v. City of Knoxville, No. E2014-02055-COA-R3-CV, 2016 WL
746503, at *5-6 (Tenn. Ct. App., filed Feb. 25, 2016) (quoting Dick Broad. Co., Inc. of
Tenn. v. Oak Ridge FM, Inc., 395 S.W.3d 653, 671 (Tenn. 2013); see also Rye v.
Women’s Care Ctr. of Memphis, MPLLC, 477 S.W.3d 235, 250, 264 (Tenn. 2015)). A
motion for summary judgment must be denied “if there is a dispute as to any material fact
or any doubt as to the conclusions to be drawn from that fact[.]” Garner v. Coffee Cty.
Bank, No. M2014-01956-COA-R3-CV, 2015 WL 6445601, at *4 (Tenn. Ct. App., filed
Oct. 23, 2015) (quoting Byrd v. Hall, 847 S.W.2d 208, 211 (Tenn. 1993)) (internal
quotation marks removed).

       In the case now before us, many of the facts are undisputed. What is vigorously
disputed are “the conclusions to be drawn from [those] fact[s].”

       This appeal also raises questions of statutory interpretation, “which we . . . review
de novo with no presumption of correctness.” Mills v. Fulmarque, Inc., 360 S.W.3d
362, 366 (Tenn. 2012) (citing Austin v. State, 222 S.W.3d 354, 357 (Tenn. 2007)). When
interpreting statutes,

              [the] Supreme Court has stated . . . courts are to “give effect
              to the legislative intent without unduly restricting or
              expanding a statute‟s coverage beyond its intended scope.”

                                             8
             Owens v. State, 908 S.W.2d 923, 926 (Tenn. 1995). The
             courts should determine intent “from the natural and ordinary
             meaning of the statutory language within the context of the
             entire statute without any forced or subtle construction that
             would extend or limit the statute‟s meaning.” State v.
             Flemming, 19 S.W.3d 195, 197 (Tenn. 2000). Further, the
             rules of statutory construction direct courts not to “apply a
             particular interpretation to a statute if that interpretation
             would yield an absurd result.” State v. Sims, 45 S.W.3d 1, 11
             (Tenn. 2001).

Wood v. Lowery, 238 S.W.3d 747, 764 (Tenn. Ct. App. 2007).

                                             V.

      The beneficiaries assert in their brief that

             in light of this being an appeal of the third motion for
             summary judgment filed by the [Trustee], Appellees hereby
             assert that the doctrines of waiver and equitable estoppel must
             govern the instant appeal, such that any new arguments which
             were raised after the first Brief submitted by Appellant should
             be stricken. [The Trustee] should not be given three attempts
             to continue to raise arguments in support of its position.

(Emphasis in original omitted.) The beneficiaries do not cite any authority for their
position that “the doctrine of waiver and equitable estoppel must govern.” With regard to
the facts in this case, we do not know of any legal basis for their assertion. If the
beneficiaries are saying that arguments made by the Trustee at the hearing below on the
first motion for summary judgment and rejected by the trial court cannot be raised again,
that simply is not the law.

                                            VI.

                                             A.

       As previously noted, the Trustee, in its motion for summary judgment, argues that
the beneficiaries‟ suit was untimely under the one-year statute of limitations in Tenn.
Code Ann. § 35-15-1005(a) and also under the three-year statute of limitations in Tenn.
Code Ann. § 35-15-1005(c). Subsection (c) of that statute only applies if subsection (a)
does not. For this reason, we first will consider the evidence pertaining to whether the
beneficiaries‟ suit was timely filed under subsection (a).


                                              9
                                              B.

       The Trustee asserts that a beneficiary‟s “actual knowledge of a potential claim will
trigger the running of the statute” under Tenn. Code Ann. § 35-15-1005(a). The Trustee
argues that, as a result, the statute of limitations began to run at that time and had expired
well before the beneficiaries filed their suit on May 13, 2010. The Trustee alternatively
argues that the one-year statute of limitations began running when the beneficiaries were
put on notice to inquire into their potential breach of trust claim.

        The Trustee cites the federal case of Parris v. Regions Bank, No. 09-2462, 2011
WL 3629218, at *4 (W.D. Tenn., filed Aug. 17, 2011), to support its argument. In
Parris, a United States District Court applied Tennessee substantive law and considered
the statute of limitations in Tenn. Code Ann. § 35-15-1005(a). That court addressed the
inquiry notice issue as follows:

              Although Tennessee courts have not interpreted these UTC
              [Uniform Trust Code] provisions, they incorporate the
              “inquiry notice” concept that is also part of Tennessee‟s
              discovery rule. See Sherrill v. Souder, 325 S.W.3d 584, 593
              (Tenn. 2010); Estate of Morris v. Morris, 329 S.W.3d 779,
              783 (Tenn. Ct. App. 2009) (describing inquiry notice)
              (citations omitted). “It is now well-established that, where
              applicable, 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
              & Spaghetti House v. Lee, 90 S.W.3d 614, 621 (Tenn. 2002)
              (citation omitted). “The statute of limitations will not be
              tolled, however, in cases where the plaintiff has information
              that would place a reasonable person on inquiry notice that he
              may have a cause of action.” Estate of Morris, 329 S.W.3d
              at 783 (citation omitted); see Sherrill, 325 S.W.3d at 593
              (explaining that “the plaintiff is deemed to have discovered
              the right of action if he is aware of facts sufficient to put a
              reasonable person on notice that he has suffered an injury as a
              result of wrongful conduct”) (citation omitted). Where a
              plaintiff has inquiry notice, that notice is “notice of all the
              facts to which inquiry will lead, when prosecuted with
              reasonable diligence and good faith.” Estate of Darnell v.
              Fenn, 303 S.W.3d 269, 280 (Tenn. Ct. App. 2009); see
              Blevins v. Johnson Cnty., 746 S.W.2d 678, 682 (Tenn. 1988)
              (citations omitted).


                                              10
                                      *      *      *

              “Because the statute of limitations is an affirmative defense,
              the burden is on the defendant to show that the statute of
              limitations has run.” Operator Indep. Drivers Ass’n v.
              Comerica Bank, 636 F.3d 781, 802 (6th Cir. 2011) (citing
              Campbell v. Grand Trunk Western R. Co., 238 F.3d 772,
              775 (6th Cir. 2001)); see also Arnett [v. Myers,] 281 F.3d
              [552, 561 (6th Cir. 2002)]; Marksbury, 2011 WL 1832883, at
              *2-3. Regions must proffer evidence that would require a
              reasonable jury to conclude that Parris had inquiry notice
              more than one year before he brought suit. See Operator
              Indep. Drivers Ass’n, 636 F.3d at 802; Arnett, 281 F.3d at
              561; Marksbury, 2011 WL 1832883, at *2-3.

2011 WL 3629218, at *4-5.

        As the trial court made clear in its order granting the beneficiaries permission to
seek an interlocutory appeal, this case is one “of first impression in Tennessee,” such that
“[t]here have been no [Tennessee] appellate court opinions regarding the provisions of
the applicable statute of limitations found at T[enn].C[ode] A[nn]. § 35-15-1005.” As far
as we can determine, Tenn. Code Ann. § 35-15-1005 has been cited in only one appellate
decision, i.e., Convention of Protestant Episcopal Church in Diocese of Tennessee v.
Rector, Wardens, & Vestrymen of St. Andrew’s Parish, No. M2010-01474-COA-R3-
CV, 2012 WL 1454846, at *21 (Tenn. Ct. App., filed Apr. 25, 2012). However, in that
case, we quickly declined to apply the one-year statute of limitations because the suit at
issue was “not a breach of trust action,” such that “[n]o „report‟ as envisioned by the
statute was delivered; no allegation of breach of trust was made.” Id. In Parris, none of
the cases cited there interpret the statute of limitations in Tenn. Code Ann. § 35-15-1005,
though it was at issue in Parris and is at issue in the case now before us. Instead, the
Parris court cited cases that interpret Tennessee‟s general “discovery rule.” 2011 WL
3629218, at *4. Parris did not address whether the statute‟s discovery rule is different
from the Tennessee general discovery rule. As we will show, we do not believe the
Tennessee general discovery rule applies in cases such as the one now before us.

        The Supreme Court originally adopted the general discovery rule in Teeters v.
Currey, 518 S.W.2d 512, 517 (Tenn. 1974). This rule provides that “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)). Originally, the court adopted the rule for application in certain medical
malpractice cases. Teeters, 518 S.W.2d at 517. However, the discovery rule has been

                                            11
“subsequently expanded . . . to other common law negligence, strict liability, and
misrepresentation actions.” Gerdau Ameristeel, Inc. v. Ratliff, 368 S.W.3d 503, 507
(Tenn. 2012). This rule “has ameliorated the hardship which sometimes arises from the
operation of statutes of limitations, by making it less likely that such a statute will
unfairly deprive a plaintiff of all opportunity to enlist the assistance of the courts to
vindicate his claim.” Steele v. Tenn. Jaycees, Inc., No. 01-A-01-9505-CH00214, 1995
WL 623067, at *2 (Tenn. Ct. App., filed Oct. 25, 1995). Still, it “was not meant to allow
a party to delay filing his claim until after he has completed the process of discovering all
the factors that affect its merits.” Id. at *5. To determine whether to apply the discovery
rule, we “consider[ ] the specific statutory language at issue, and balance[ ] the policies
furthered by application of the discovery rule against the legitimate policies upon which
statutes of limitations are based.” Quality Auto Parts Co. Inc. v. Bluff City Buick Co.,
Inc., 876 S.W.2d 818, 820 (Tenn. 1994) (citation omitted).

        The Parris court described the discovery rule as an “equitable exception.” 2011
WL 3629218, at *4 (internal citations omitted). The Trust Code specifically provides
that it is supplemented by “principles of equity . . . except to the extent modified by this
chapter. . . .” Tenn. Code Ann. § 35-15-106 (2007) (emphasis added). To determine
whether a beneficiary‟s receipt of “actual knowledge of a potential claim for breach of
trust” or “notice to inquire into” such a claim triggers the one-year statute of limitations
in Tenn. Code Ann. § 35-15-1005(a)-(b), we “ „must look to the plain language of the
statute to determine the intent of the legislature.‟ ” State v. Smith, No. M2015-01289-
CCA-R3-CD, 2016 WL 560377, at *2 (Tenn. Crim. App., filed Feb. 12, 2016) (quoting
State v. Hogg, 448 S.W.3d 877, 887 (Tenn. 2014)). “When the language of the
legislature is clear and unambiguous, the court should apply the plain language in its
normal and accepted use.” Id.

       We again state the language of Tenn. Code Ann. § 35-15-1005:

              (a) A beneficiary may not commence a proceeding against a
              trustee for breach of trust more than one (1) year after the
              date the beneficiary or a representative of the beneficiary was
              sent a report that adequately disclosed facts indicating the
              existence of a potential claim for breach of trust.

              (b) A report adequately discloses facts indicating the
              existence of a potential claim for breach of trust if it provides
              sufficient information so that the beneficiary or the
              beneficiary‟s representative knows of the potential claim or
              has sufficient information to be presumed to know of it, or to
              be put on notice to inquire into its existence.



                                             12
              (c) If subsection (a) does not apply, a judicial proceeding by a
              beneficiary against a trustee for breach of trust must be
              commenced within three (3) years after the first to occur of:

              (1) The removal, resignation, or death of the trustee;

              (2) The termination of the beneficiary‟s interest in the trust;
              or

              (3) The termination of the trust.

       The statute provides two separate time periods within which a beneficiary may
commence a proceeding for breach of trust against a trustee – a one-year period listed in
subsection (a), and a three-year period listed in subsection (c) that applies only if
subsection (a) does not apply. The plain language of subsection (a) indicates the one-
year period begins to run from “. . . the date the beneficiary . . . was sent a report[.]”
Tenn. Code Ann. § 35-15-1005(a). The official Advisory Commission comment to the
statute further provides that “[s]ubsection (a) applies only if the trustee has furnished a
report,” and “[s]ubsection (c) . . . applies to cases in which the trustee has failed to report
to the beneficiaries or the report did not meet the disclosure requirements of subsection
(b).” Tenn. Code Ann. § 35-15-1005 cmt. (emphasis added). Accordingly, the one-year
statute of limitations is triggered only by sending a report to the beneficiary or the
beneficiary‟s representative that meets the statutory disclosure requirements.

       Language describing when a beneficiary acquires “actual knowledge of a potential
claim for breach of trust” does not appear in Tenn. Code Ann. § 35-15-1005(a).
Subsection (a) describes the type of report that can trigger the one-year period – one that
“adequately disclosed facts indicating the existence of a potential claim for breach of
trust.” Subsection (b) further describes what constitutes an adequate disclosure. The
interplay between the two subsections focuses squarely on the report and its contents.
Since subsections (a) and (b) expressly provide the event that triggers the running of the
statute of limitations, we conclude and hold that a beneficiary‟s acquisition of actual
knowledge of a potential claim for breach of trust does not in and of itself trigger the
statutory one-year period. The beneficiary‟s “know[ledge] of the potential claim” is only
relevant to trigger the one-year period if that knowledge was acquired through a report,
with the required disclosures, sent to the beneficiary.

       Similarly, the plain language of the statute does not provide that the one-year
period listed in subsection (a) is triggered by a beneficiary being “put on notice” through
any means “to inquire into” the existence of a breach of trust. Instead, as previously
noted, the statute provides that the one-year period begins to run on the date a report is
sent to the beneficiary that “provides sufficient information” to put the beneficiary on
notice to inquire into the existence of a potential claim for breach of trust. We are not

                                              13
permitted to extend a statute beyond its “natural and ordinary meaning.” Wood, 238
S.W.3d at 764 (quoting Flemming, 19 S.W.3d at 197) (internal quotation marks
removed). Furthermore, we cannot infer that the Legislature intended for the
beneficiary‟s acquisition of actual knowledge of, or notice to inquire into, a potential
claim for breach of trust to be a basis for triggering the one-year statute of limitations.

        Applying the general discovery rule to the statute of limitations for a breach of
trust claim would override the explicit requirement in Tenn. Code Ann. § 35-15-1005(a)
that the one-year period begins running the date an adequate report is sent to the
beneficiary or its representative. Under subsection (a), sending this report is the event
that triggers the one-year statute of limitations. Conversely, the general discovery rule
provides that the statute of limitations is triggered when the injury is discovered or when
“in the exercise of reasonable care and diligence,” the injury should have been
discovered. Estate of Morris, 329 S.W.3d at 783. Although the language of subsection
(b) is similar to the language of the general discovery rule, subsection (b) is describing
what constitutes “[a] report that adequately discloses facts indicating the existence of a
potential claim for breach of trust . . . .” According to its plain language, the statute and
the general discovery rule prescribe conflicting events to trigger the running of a statute
of limitations. As a result of that conflict, the general discovery rule must give way to the
statutory scheme. See Graves v. Ill. Cent. R. Co., 148 S.W. 239, 242 (Tenn. 1912)
(“[w]hen there is a conflict between the common law and a statute, the provision of the
statute must prevail”); Hodge v. Craig, 382 S.W.3d 325, 338 (Tenn. 2012) (“[c]ommon-
law principles and rules govern unless they have been changed by statute”).

       Since the one-year statute of limitations in subsection (a) begins to run when a
beneficiary is sent a report with the information described in the statute, the Trustee‟s
assertion that the beneficiaries “had actual knowledge of their claims as of December 28,
2005” is not sufficient to establish that the one-year statute of limitations was triggered
on that date.

                                             C.

      Our Trust Code provides only broad guidance for what constitutes a “report.” An
Advisory Commission comment to Tenn. Code Ann. § 35-15-813 (2007) states that the

              Trust Code employs the term “report” instead of “accounting”
              in order to negate any inference that the report must be
              prepared in any particular format or with a high degree of
              formality. The reporting requirement might even be satisfied
              by providing the beneficiaries with copies of the trust‟s
              income tax returns and monthly brokerage account statements
              if the information on those returns and statements is complete
              and sufficiently clear. The key factor is not the format chosen

                                             14
              but whether the report provides the beneficiaries with the
              information necessary to protect their interests. . . .

(Emphasis added.) In Parris, the federal court considered whether a letter sent by a co-
trustee to the representative of a beneficiary conveyed sufficient information to put the
recipient on inquiry notice of a potential breach of trust. 2011 WL 3629218, at *4-5.
Ultimately, that court declined to find the letter was sufficient to trigger the one-year
period based on its content, not its format. Id. at *5 (quoting Tenn. Code Ann. § 35-15-
1005(b) (“the letter does not require a reasonable trier of fact to conclude that [the
plaintiff] was „on notice to inquire into‟ the existence of a potential claim for breach of
trust”)). Because “report” is not expressly defined in the statutory scheme, we interpret it
according to its “plain and ordinary” meaning. See Snyder v. First Tenn. Bank, N.A.,
No. E2015-00530-COA-R3-CV, 2016 WL 423806, at *9 (Tenn. Ct. App., filed Feb. 3,
2016) (citing Shockley v. Mental Health Coop., Inc., 429 S.W.3d 582, 591 (Tenn.
2013)).

       As stated above, to trigger the one-year statute of limitations, such a report must
be sent to “the beneficiary or a representative of the beneficiary.” Tenn. Code Ann. § 35-
15-1005(a). Tennessee‟s Trust Code defines “beneficiary,” in part, as “a person” who
“[h]as a present or future beneficial interest in a trust, vested or contingent.” Tenn. Code
Ann. § 35-15-103(3)(A) (2007). In the statement of undisputed material facts submitted
with the motion for summary judgment, the Trustee stated “the plaintiffs” – identified on
the same document as Julia H. “Robin” Meyers, Laura E. Meyers, and Emily M. Stevens
– “were the beneficiaries of the [Trust].” The Trustee argues that on several occasions it
sent a “report” sufficient to trigger the one-year period in Tenn. Code Ann. § 35-15-
1005(a).

        The beneficiaries state that “[t]he gravamen of the case before the court is the
management of the trust real estate, not the mismanagement of the trust bank account.”
The beneficiaries admit that the Trustee “initially provided quarterly reports, and then
later monthly reports, to the beneficiaries about the trust financial accounts,” but add that
the [T]rustee “did not provide reports concerning the condition or mismanagement of the
trust real property.” (Emphasis in original omitted.) The beneficiaries assert that facts
that would have indicated a potential claim for breach of trust “would not have been
found in a financial report, but in a report on the condition of the warehouses owned by
the Trust.”

        The beneficiaries argue that “no information regarding the defects in the condition
of, or the management of, the real estate was ever reported by the Trustee in any form.”
(Emphasis in original omitted.) They state in their brief that “it is obvious that there
could be no report sent to” them because “it appears from the record that the [Trustee] did
not even perform an inspection of the interior damage or exterior damage of the
warehouses.” In support, they cite the deposition testimony of the Bank‟s Vice President

                                             15
and Trust Real Estate Officer Douglas McKamey. He stated that the bank did not create
reports that listed damages to the interior or exterior of the buildings. We note, though,
that a report does not have to be in any particular format. Tenn. Code Ann. § 35-15-813
cmt. Again, a report may be adequate for purposes of Tenn. Code Ann. § 35-15-1005(a)
so long as it “provides sufficient information so that the beneficiary . . . knows of the
potential claim or has sufficient information to be presumed to know of it, or to be on
notice to inquire into its existence.” Tenn. Code Ann. § 35-15-1005(b).

       The Trustee argues, in part, that it sent the beneficiary a report through one of the
many “phone calls, faxes, letters, and meetings between the parties.” To consider facts at
the summary judgment stage, they “must be included in the record . . . and they must be
admissible in evidence.” Watson v. Waters, 375 S.W.3d 282, 291 (Tenn. Ct. App. 2012)
(citing Byrd, 847 S.W.2d at 215-16; Tenn. R. Civ. P. 56.03, 56.06). In its brief, the
Trustee evidences the “numerous phone calls . . . and meetings between the parties” in
part by citing to summaries prepared by Emil Meyers, husband of Robin Meyers, a
beneficiary. Although the Trustee cites to Mr. Meyers‟ summaries in support of its
position in this case, the Trustee then turns around and says in a footnote that “[t]he
summaries prepared by Emil Meyers are pure hearsay and will be objected to at trial.” If
they are inadmissible “heresay,” we cannot consider them on summary judgment. In
further support of its position, the Trustee refers to an interrogatory in which the Trustee
had asked the beneficiaries to describe specific facts to support their claim. The
beneficiaries responded that, “[v]olumes of paperwork, emails, letters and exhibits have
been previously exchanged.” The response to the interrogatory is insufficient to establish
that the beneficiaries were sent a report for purposes of Tenn. Code Ann. § 35-15-1005.
Namely, their answer does not include the substance of those exchanges or indicate what
information, specifically, was sent to the beneficiaries. Facts that are not in the record
cannot be considered in connection with a motion for summary judgment.

       The Trustee also argues that it sent a report through “an email exchange between
the parties . . . in which warehouse structural flaws were analyzed, engineers were
consulted, and damages were calculated,” and specifically, a June 17, 2005 email “to the
Meyers stating that [the Trustee] had not routinely kept inspection reports for either
warehouse.” To analyze whether the beneficiaries were sent a report sufficient to trigger
the statute of limitation in Tenn. Code Ann. § 35-15-1005(a), we will include the most
relevant correspondence included in the record. Neither the beneficiaries nor the Trustee
have disputed the authenticity of the correspondence.

       In a letter dated March 10, 2005, Emil and Robin Meyers wrote to McKamey, vice
president and trust real estate officer at the Bank, listing repairs needed in “Haney
Warehouses Numbers 1 & 3.” The letter was sent by a beneficiary, Robin Meyers; it was
not sent to a beneficiary. As a result, it does not fall within the language of Tenn. Code
Ann. § 35-15-1005(a), which starts the running of the limitations period “. . . the date the


                                            16
beneficiary . . . was sent a report . . .” and “applies only if the trustee has furnished a
report.” Tenn. Code Ann. § 35-15-1005(a), cmt. (emphasis added).

        A letter from Robin and Emil Meyers to McKamey, among others, on December
13, 2005, talks about an inspection of the roof support poles in Haney #1 Warehouse that
was done with the intent of reviewing the findings of a structural engineer who had been
contracted to inspect the warehouses and furnish a written report. The letter does not
suggest any mismanagement on the part of the Trustee or establish that “the beneficiary
. . . was sent a report that adequately disclosed facts indicating the existence of a potential
claim for breach of trust.” Tenn. Code Ann. § 35-15-1005(a). Additionally, the letter is
from one beneficiary to the Trustee. Therefore, it also does not fall within the language
of Tenn. Code Ann. § 35-15-1005(a).

       Robin and Emil Meyers wrote to McKamey by email on May 26 and June 15,
2005, requesting “copies of the building inspection reports for Haney #3 and Haney #1.”
The emails do not indicate that they were sent to Laura Meyers or Emily Stevens. The
messages do indicate they were sent to Brad Stevens, who is elsewhere identified as
Emily Stevens‟ husband. In the May 26 email, Robin and Emil Meyers listed and
described an estimated cost for repairs in both warehouses and stated:

              In order to assign lessee responsibility for damages to both
              warehouses we need to produce the building inspection
              reports at the transition of tenants on June 30, 1997 for Haney
              #3 and December 20, 1997 for Haney #1. . . .

              As [the T]rustee for the [Trust], you would have made these
              inspections in fulfilling your fiduciary responsibility at the
              termination of a lease and the beginning of a new lease with
              each tenant. These inspections would be in addition to the
              normal inspections made during the normal term of any lease
              to insure [sic] that the building(s) are being maintained as
              specified in the lease.

              Please forward copies of these inspections immediately for
              our review as there is considerable damage to both buildings
              and structural alterations which jeopardize the integrity of the
              buildings.

(Emphasis added.) McKamey sent a reply by email to Robin and Emil Meyers on June
17, 2005, stating in part,

              We searched our files on both warehouses and were unable to
              find any reports made for either warehouse concerning a

                                              17
              walk-through/inspection at the time of the changeover [in
              tenants]. As I think I mentioned to you earlier, I was not with
              the Bank at that time and obviously don‟t have any first hand
              knowledge of what took place during the changeover. Nor
              were we able to find any letters dating from that period
              advising [a tenant] of any damages for which they were
              responsible.

The above message was also copied to Brad Stevens, among others, but there is no
indication that it was sent to Laura Meyers or Emily Stevens.

      Robin and Emil Meyers responded to McKamey by email on July 18, 2005, still
copying Brad Stevens, among others, but not including Laura Meyers or Emily Stevens:

              This is to confirm your e-mail of June 17, 2005, in relation to
              your statement that after a diligent search you have been
              unable to locate any reports made for either warehouse,
              Haney #3 or Haney #1, that could be used to document a
              walk-through inspection made at the time of the change-over
              of tenants. . . . Furthermore, based on your statement that both
              files of both warehouses have been searched, there are no
              records that indicate any walk-through inspection was
              completed when the change-over in tenants was made. . . . In
              addition, [the Trustee] is unable to produce any inspection
              reports or any letters to any of the past tenants regarding
              damages to the buildings and the tenant‟s responsibility to
              repair the damages under the terms and conditions of the
              leases that could be utilized in an action against the tenants
              for the damages since the trust was established in the year
              1980.

              Please advise if the above information is not correct within
              the next thirty (30) days.

On August 4, 2005, McKamey forwarded Robin and Emil Meyers, via facsimile, a letter
dated July 29, 2005, that he had received from William Nunnally, attorney for the Bank
in its capacity as the Trustee. In the letter, Nunnally discouraged pursuing legal action to
recover damages from warehouse tenant Distribution Services. Among other reasons for
his advice, he stated

              the lease for No. 3 began a number of years ago when it is
              likely that some of these damages that we now identify had
              already occurred. It would be very difficult to establish

                                            18
             which damages to the warehouses predated occupancy by
             Distribution Services versus those that occurred after their
             occupancy. Unless we can be precise in such proof, the Court
             might rule that no claim for damages can be awarded at all.

McKamey also replied to Robin and Emil Meyers‟ July 18 message through an email sent
on August 9, 2005, but only to Robin and Emil Meyers:

             Although inspections were made and inspection reports exist,
             none that I have found were completed at the same time as
             the change-over of the tenants. I am reluctant to say from
             [sic] sure that there is nothing that could be utilized in an
             action for damages against the tenants; I would simply have
             to consult with our attorney in any action against the tenants.

             As far as the remainder of your July 18 inquiry is concerned, I
             would simply refer you to my June 17 message. Please let me
             know if I may be of further assistance.

(Emphasis added.) Robin and Emil Meyers responded by email on August 11, 2005, also
– based on the correspondence as it appears in the record – sending the message to Brad
Stevens, among others, but not sending the message to Laura Meyers or Emily Stevens:

             What we are trying to determine is: Are there any inspection
             reports that show/discover damage for which the tennant [sic]
             is responsible based on the terms and conditions of the lease?
             These inspection reports could be at any time during any
             tenant‟s occupancy, not just at a changeover between
             tennants. In addition, if damage was determined to be a
             tennant responsibility, there should be a letter from the bank,
             as [the T]rustee, advising the tennant to make repairs, again,
             based on the terms and conditions of the lease. The bank,
             again as [the T]rustee, should have some follow-up
             documentation that shows that the repairs were made by the
             tennant[.]

             We think it is premature for you to consult with an attorney.
             We would like to determine what documents you have on file
             that reflect what we have discussed in the paragraph above.

The next day, McKamey replied “No, there are none” in an email sent only to Robin and
Emil Meyers.


                                           19
       The Trustee states in its brief,

              [T]he Trustee most assuredly did send a report (in the form of
              an email) to the Meyers stating that it had not routinely kept
              inspection reports for either warehouse. That particular
              report, sent on June 17, 2005 – five years before the
              complaint was filed – put the Meyers on notice of a potential
              claim. Short of mailing them a document entitled “REPORT
              OF POTENTIAL CLAIM FOR BREACH OF TRUST,” it is
              difficult to imagine what more the Trustee could have done to
              meet the requirements of T.C.A. § 35-15-1005.

(Underlining, capitalization, and italics in original.) We disagree. Most notably, nothing
in the June 17, 2005 email indicates that it was sent to two of the three beneficiaries. The
statute of limitations in Tenn. Code Ann. § 35-15-1005(a) begins running against “[a]
beneficiary . . . the date the beneficiary . . . . was sent a report . . . .” (Emphasis added.)
Regardless of whether the above correspondence constitutes a “report” as contemplated
under the statute, it cannot trigger the running of the statute of limitations against a
beneficiary who was not an addressee of the correspondence.

        Additionally, a question exists as to whether the content of the correspondence
from McKamey “disclosed facts indicating the existence of a potential claim for breach
of trust” to beneficiary recipient Robin Meyers. Tenn. Code Ann. § 35-15-1005(a). The
Trust Code defines a breach of trust as “[a] violation by a trustee of a duty the Trustee
owes to a beneficiary.” Tenn. Code Ann. § 35-15-1001(a) (2007). In the email sent May
26, 2005, Emil and Robin Meyers expressed their expectation that the Trustee would
conduct certain inspections. In the June 17, 2005 email, the Trustee admitted that it could
not locate a record of any such inspection made during the transition between tenants.
The Trustee‟s alleged failure to conduct certain inspections is central to the breach of
trust claim against them. For instance, the beneficiaries have argued, “[s]ince the
[Trustee] never did an inspection for damages, then the trust was never able to recover
from the tenants” for the damage they caused to the property. Significantly, though, on
August 9, 2005, after forwarding Robin Meyers the letter from Nunnally, McKamey
walked back his earlier statement and assured Robin and Emil Meyers that “inspections
were made and inspection reports exist” but that “none that I have found were
completed” at the time the Meyers requested. McKamey concluded by adding he was
“reluctant to say from [sic] sure that there is nothing that could be utilized in an action for
damages against the tenants.” He later informed Emil and Robin Meyers on August 12,
2005, that the Trustee could not locate the type of reports they envisioned to pursue a
claim against the former tenants. McKamey‟s statements clearly conveyed that the
desired information was unavailable, but his statements also conveyed that the Trustee
made inspections, kept reports, and that perhaps some other means could be “utilized in
an action for damages against the tenants.” Therefore, it is unclear whether the exchange,

                                              20
in its totality, “disclosed facts indicating the existence of a potential claim for breach of
trust.”

       On February 15, 2007, Emil and Robin Meyers sent an email message to
McKamey, among others at the Bank, requesting “a copy of the Inspection Reports for
Haney #1 and Haney-Bewley #3, per your inspection in December 2006.” The following
day, McKamey replied by email, informing them, in part, that “I have been advised that
the inspection reports are internal documents and not something we provide in the
ordinary course of business. Consequently, I am unable to provide you with these
documents.” On February 17 and 25, 2007, Emil and Robin Meyers responded by email,
asking McKamey if he could “call to our attention any repair requirements noted during
your inspection?” On March 2, 2007, McKamey responded, in part, that he and another
representative of the Bank “did not note any needed repairs in our most recent inspection
that had not already been noted in one or more of the past inspections which I made with
the two of you. While there are repairs that could be made, they are not necessarily
imminent.” The correspondence from McKamey conveys that the warehouses were
inspected, no new problems were found, and that inspection reports were created.
Nothing in this February and March 2007 email exchange indicates that the
correspondence was sent to Laura Meyers or Emily Stevens.

        Emil and Robin Meyers sent a letter to the Trustee dated July 15, 2008, detailing
allegations of the Trustee‟s mismanagement for which they requested $128,410.88 from
the Trustee and $750,000 in restitution payments. Nothing in the letter indicates it was
sent to Laura Meyers or Emily Stevens. The Trustee sent a reply letter, dated October 10,
2008. The reply letter was addressed only to Emil and Robin Meyers. In the May 22,
2014 motion for summary judgment, the Trustee specifically cited this letter as evidence
that it sent the beneficiaries a report sufficient to trigger the one-year statute of
limitations. The letter provides in part:

              Based on our careful review of your packet of information, it
              appears that the majority of issues you raise have been
              resolved, leaving four main items to be addressed: (1)
              whether [the Trustee] recovered two months of lease short
              payments made in July and August 2000 totaling $1,248.00;
              (2) whether [the Trustee] properly and timely addressed the
              roof leaks that arose in 1998; (3) whether [the Trustee]
              conducted adequate inspections of the warehouses; and (4)
              reimbursement of travel and legal expenses.

              With respect to the lease short payments, our records indicate
              that in October 2000, Doug McKamey sent a letter to the
              lessee advising of the short payments and directing the lessee
              to remit those amounts to [the Trustee]. While Mr.

                                             21
McKamey believes that the lessee would have remitted the
short payments in response to his letter, we have been unable
to confirm from our records that those payments were
actually received and credited to the account. Consequently,
[the Trustee] is willing, as a good-faith gesture, to pay Ms.
Meyers the $1,248.00 at issue, and a check in that amount is
enclosed herewith.

With respect to the roof leaks, our records indicate that [the
Trustee] was very diligent in pursuing repairs of the roof.
The [Trustee] demanded that C.M. Henley Company, which
had initially repaired the roof in 1995, undertake the
additional work necessary to repair the leaks. Mr. McKamey
made numerous telephone calls to Mark Henley, owner of
C.M. Henley Company, and obtained Mr. Henley‟s
assurances that the problems would be resolved. When Mr.
Henley failed to adequately address the issue, [the Trustee]
obtained the assistance of outside counsel, as you and Ms.
Meyers were aware, to secure performance from Mr. Henley.
Due to the efforts of [the Trustee] and our outside counsel,
which included arranging for inspections of the roof, frequent
contacts and correspondence with Mr. Henley‟s company and
his counsel, and the initiation of a lawsuit against C.M.
Henley Company, [the Trustee] was able to secure the repair
work needed from Mr. Henley, who performed them at no
additional cost to the Trust. Based on quotes obtained from
other roof repair companies, it would have cost tens of
thousands of dollars to retain another company to perform the
repairs, costs which the Trust may or may not have been able
to recover in litigation against C.M. Henley Company, and if
so, only with substantial legal expense. By aggressively
pursuing Mr. Henley to perform the repair work, and
obtaining a $4,000 settlement (with your approval) in
addition to the work performed, we were able to greatly
minimize any expense to the trust.

With respect to inspections of the warehouse, our records
show that [the Trustee] did, indeed, undertake annual
inspections of the warehouses and fully met its obligations in
this regard. It was not until Distribution Services [a
warehouse tenant] and its affiliates filed Chapter 11 and
began vacating the warehouses, that certain potential repair
issues become [sic] apparent. Because the lessees were

                             22
              already in bankruptcy, Trust counsel advised that we would
              be unable to recover the costs of repairs even if it was
              determined that any damage was beyond ordinary wear and
              tear and that Distribution Services was responsible for any
              repairs. Please note that Kent Bewley had never noted or
              mentioned a need for repair prior to the March 2005
              inspection. We would likewise note that you and your wife
              had been present for at least one inspection in 2001, yet made
              no mention of any extensive damage that necessitated repair.

              As for the travel and legal expenses for which you seek
              reimbursement, we see no legal or factual basis for such a
              claim. [The Trustee] would, under no circumstances, have
              liability for the expenses you incurred as a result of your
              decision to make trips to the warehouses. Likewise, any legal
              or travel costs you incurred relating to the termination of the
              trust would not be the responsibility of [the Trustee].

              We believe that we have adequately addressed the issues
              outlined in your letter. We further believe that [the Trustee]
              met its obligations with respect to the Trust and, therefore,
              that the $1,248 enclosed with this letter appropriately
              compensates the beneficiaries with respect to these matters.

(Emphasis added.)

       The Trustee now argues that “[t]he letter adequately disclosed facts indicating the
existence of a potential claim for breach of trust . . . .” Contrary to the Trustee‟s
description of the letter made during the current litigation, the letter easily could be seen
as conveying, instead, point-by-point assurances to the beneficiaries that no breach of
trust occurred. A letter from a trustee assuring the recipient that the Trustee “has met its
obligations with respect to the trust” is unconvincing as “a report” that “adequately
discloses facts indicating the existence of a potential claim for breach of trust” against the
Trustee. Further, when the letter was sent on October 10, 2008, neither recipient – Robin
or Emil Meyers – met the definition of a beneficiary: “a person that: (A) [h]as a present
or future beneficial interest in a trust, vested or contingent; or (B) [i]n a capacity other
than that of trustee, holds a power of appointment over trust property.” Tenn. Code Ann.
§ 35-15-103(3). The Trust was terminated May 16, 2007, and its property had been
distributed by November 2007. Robin Meyers was no longer a Trust beneficiary in 2008.

      The Trustee raised the issue that the beneficiaries‟ claim was time-barred in its
motion for summary judgment. When reviewing a motion for summary judgment, “[w]e
must view the evidence in the light most favorable to the nonmoving party and must draw

                                             23
all reasonable inferences in the nonmoving party‟s favor.” Thomas v. Carpenter, No.
M2005-00993-COA-R9-CV, 2005 WL 1536218, at *2 (Tenn. Ct. App., filed June 29,
2005) (citing Robinson v. Omer, 952 S.W.2d 423, 426 (Tenn. 1997)). “[I]f there is a
dispute as to any material fact or any doubt as to the conclusions to be drawn from that
fact, the motion must be denied.” Garner, 2015 WL 6445601, at *4 (Tenn. Ct. App.
M.S., filed Oct. 23, 2015) (internal quotation marks removed and emphasis added).
Doubts exist about the conclusions that can be drawn from the correspondence sent to
Robin Meyers and whether it adequately disclosed facts that indicated a potential claim
for breach of trust. These are factual issues for the trier of fact.

        The June 17, 2005 email and the October 10, 2008 letter – specifically described
as “reports” by the Trustee in its brief – were not sent to two of the three individuals the
Trustee identified as beneficiaries in its statement of undisputed material facts. A trustee
owes qualified beneficiaries a duty to report. Tenn. Code Ann. § 35-15-813. In
determining whether a trustee has met the reporting requirement, “[t]he key factor is . . .
whether the report provides the beneficiaries with the information necessary to protect
their interests.” Tenn. Code Ann. § 35-15-813, cmt. Laura Meyers and Emily Stevens
appear to have been left out of correspondence from the Trustee that conveyed
information about the Trust property, though they were included in correspondence
regarding diversification of the Trust assets and the Trustee‟s notice of resignation. The
Trustee has not established that beneficiaries Laura Meyers and Emily Stevens were sent
a report sufficient to trigger the one-year statute of limitations.

       While Robin Meyers, a beneficiary, was involved in an exchange of
communications with the Trustee, we do not find that the messages to her made out the
requisite facts indicating she had a potential claim against the Trustee. There are genuine
issues of material fact even as to her.

        For the reasons stated above, the Trustee failed to meet its burden on summary
judgment to establish that the beneficiaries‟ claim is barred by the one-year statute of
limitations in Tenn. Code Ann. § 35-15-1005(a). There is much material in this record
for the trier of fact to “chew on.” This is not the kind of case with clear facts and
undisputed conclusions to be drawn from those facts. It certainly does not warrant
judgment in a summary fashion.

                                           VII.

       The question we certified for appeal was not limited to whether the beneficiaries‟
claim was time-barred under Tenn. Code Ann. § 35-15-1005(a). Therefore, we next must
consider whether the suit was untimely under subsection (c) of the same statute. To aid
the reader, we will reprint subsection (c) of the statute:



                                            24
              If subsection (a) does not apply, a judicial proceeding by a
              beneficiary against a trustee for breach of trust must be
              commenced within three (3) years after the first to occur of:

              (1) The removal, resignation, or death of the trustee;

              (2) The termination of the beneficiary‟s interest in the trust;
              or

              (3) The termination of the trust.

Tenn. Code Ann. § 35-15-1005(c). Additionally, the official Advisory Commission
comment to Tenn. Code Ann. § 35-15-1005 provides that

              [w]hile the three-year limitations period will normally begin
              to run on termination of the trust, it can also begin earlier. If
              a trustee leaves office prior to the termination of the trust, the
              limitations period for actions against that particular trustee
              begins to run on the date the trustee leaves office. If a
              beneficiary receives a final distribution prior to the date the
              trust terminates, the limitations period for actions by that
              particular beneficiary begins to run on the date of final
              distribution.

(Emphasis added.)

       The Trustee argues that it resigned effective December 31, 2005, triggering the
three-year statute of limitations under subsection (c)(1) and barring the complaint filed on
May 13, 2010. The Trustee maintains on appeal that it “was compelled to continue to
administer the Trust pursuant to the Trustee‟s residual power” under Tenn. Code Ann. §
35-15-707 (2007). Conversely, the beneficiaries argue that, of the events listed in
subsection (c), the Trust‟s termination on May 16, 2007, was the first to occur. They
argue that after the Trustee gave notice of its resignation, it continued to act as the
Trustee until the Trust was divested of its assets in November 2007. The trial court found
“a question of fact regarding whether the resignation was effective December 31, 2005.”

       Under the Trust Code, “[a] trustee may resign . . . [u]pon at least thirty (30) days‟
notice to the qualified beneficiaries, the settlor, if living, and all co-trustees. . . .” Tenn.
Code Ann. § 35-15-705(a)(1) (2007). The Trust Code does not require that a trustee
receive the permission of the qualified beneficiaries in order to resign. Tenn. Code Ann.
§ 35-15-705 cmt. However, if there is no co-trustee, “until the trust property is delivered
to a successor trustee or other person entitled to it, a trustee who has resigned . . . has the
duties of a trustee and the powers necessary to protect the trust property.” Tenn. Code

                                              25
Ann. § 35-15-707(a) (emphasis added). In other words, even a trustee who has submitted
a notice of resignation and named an effective date for the intended resignation may not
leave office until the trust property has been delivered to a successor trustee or other
person entitled to it. Under subsection (c), the three-year period in which a beneficiary
may bring a proceeding against a trustee who left office prior to the termination of a trust
begins to run the date that trustee leaves office. Tenn. Code Ann. § 35-15-1005 cmt.

        Despite the Trustee‟s “notice of resignation,” the Trustee did not leave office until
the Trust had been terminated and the Trust property had been distributed. There was no
co-trustee in this case. No successor trustee was ever appointed. The beneficiaries argue
that, until the fall of 2007, the Bank still received a monthly fee for its work as trustee.
Through the fall of 2007, the Trustee also communicated with the beneficiaries about the
Trust and took various actions on behalf of the Trust, including deeding and distributing
Trust property. The record includes evidence of extensive communication between
representatives of the Bank and Robin Meyers concerning winding-up tasks of the Trust
in 2006 and 2007. Additionally, special warranty deeds conveying the Trust property
were executed in July and September 2007. Both deeds identify the Bank as “[The]
Trustee of the [Trust]” in both the body of the instruments and the signature blocks.
(Capitalization in original omitted). The Trustee did not leave office on the date it
identified as its effective resignation date. Instead, the Trustee continued to administer
the Trust well after the date of its intended resignation.

       There is evidence in the record that suggests the Trustee did not leave office
before the termination of the Trust. If this be the case, Tenn. Code Ann. § 35-15-
1005(c)(1) would not apply. Under the evidence in the record, the beneficiaries‟ interest
in trust property did not terminate prior to the termination of the trust, meaning
subsection (c)(2) also would not apply. Under this record, of the events listed in
subsection (c), the termination of the Trust on May 16, 2007, would be the first to occur.
The beneficiaries filed suit against the Trustee within three years of that date. Therefore,
the Trustee is not entitled to summary judgment on the ground that the beneficiaries‟
claim was time-barred by the three-year statute of limitations in Tenn. Code Ann. § 35-
15-1005(c).

                                           VIII.

       The judgment of the trial court is affirmed. Costs on appeal are assessed to the
appellant, First Tennessee National Bank, N.A. This case is remanded for further
proceedings consistent with this opinion.



                                                    _______________________________
                                                    CHARLES D. SUSANO, JR., JUDGE

                                             26
