                                                                                                  10/05/2017
                    IN THE COURT OF APPEALS OF TENNESSEE
                                AT NASHVILLE
                                      August 22, 2017 Session

        BOBBIE HARJO CAUDILL, ET AL. v. CLARKSVILLE HEALTH
                           SYSTEM, GP

                   Appeal from the Circuit Court for Montgomery County
                      No. CC-15-CV-1578         Ross H. Hicks, Judge
                         ___________________________________

                                 No. M2016-02532-COA-R3-CV
                             ___________________________________


The trial court granted summary judgment to the defendant medical provider based upon
the expiration of the statute of limitations. On appeal, the appellant asserts that the statute
of limitations was tolled because at the time the cause of action accrued, the decedent had
been “adjudicated incompetent,” as required by Tennessee Code Annotated section 28-1-
106. We conclude that the appellant failed to meet her burden to show that the decedent
was adjudicated incompetent at the time required to toll the statute of limitations. The
trial court’s ruling is therefore affirmed.

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

J. STEVEN STAFFORD, P.J.,W.S., delivered the opinion of the court, in which ANDY D.
BENNETT and W. NEAL MCBRAYER, JJ., joined.

Christopher Kim Thompson, Nashville, Tennessee, for the appellant, Bobbie Harjo
Caudill, individually and as personal representative of the Estate of Austin Amos Harjo.

Thomas A. Wiseman, III and Margaret Moore, Nashville, Tennessee, for the appellee,
Clarksville Health System, GP.

                                   MEMORANDUM OPINION1

1
    Rule 10 of the Rules of the Court of Appeals of Tennessee provides:

          This Court, with the concurrence of all judges participating in the case, may affirm,
          reverse or modify the actions of the trial court by memorandum opinion when a formal
          opinion would have no precedential value. When a case is decided by memorandum
          opinion it shall be designated “MEMORANDUM OPINION”, shall not be published, and
          shall not be cited or relied on for any reason in any unrelated case.
                                           Background

       The facts in this case are undisputed for purposes of this appeal. On August 27,
2013, Plaintiff/Appellant Bobbie Harjo Caudill (“Appellant”) and her sister filed an
emergency petition for the appointment of a general guardian for their father, Austin
Harjo (“Decedent”), in the District Court of Muskogee County, Oklahoma (“Oklahoma
court”). The petition alleged that Decedent had dementia and mental illness and was
incapable physically and mentally of caring for his own needs. Appellant and her sister
appeared ex parte before the Oklahoma court. The Oklahoma court entered the
emergency order on the same day that the petition was filed based on the finding that
“irreparable harm [would] be done to” Decedent if the petition were not granted. The
Oklahoma court also ordered a “[thirty] day review hearing,” set for September 25, 2013.
Appellant, her sister, and Decedent’s wife appeared before the Oklahoma court on
October 2, 2013. The minutes of the October 2, 2013 hearing in the record state that “the
emergency g[uardianship] will remain in full force and effect until further orders of [the]
[c]ourt . . .[with a further hearing] to be set ASAP/the end of October if possible.” It is
undisputed that no order was ever entered from the October 2, 2013 hearing.

       Decedent eventually moved to Clarksville, Tennessee, in order to live with
Appellant. Following a fall, Decedent was admitted to Clarksville Health System GP
d/b/a/ Gateway Medical Center (“Gateway”) on March 19, 2014. On March 24, 2014,
Decedent was discharged from Gateway. Decedent’s condition worsened, and he
ultimately died on May 24, 2014.

        On May 15, 2015 and May 19, 2015, Appellant sent Gateway a letter notifying the
hospital of a potential health care liability action against it. On August 7, 2015,
Appellant, individually and as personal representative of Decedent, filed a health care
liability action against Gateway.2 Appellant alleged that Decedent developed pressure
sores and ulcers during his stay at Gateway that became infected, causing injury that
resulted in Decedent’s death. On October 13, 2015, Gateway filed an answer generally
denying that Gateway’s negligence caused or contributed to Decedent’s injuries and
raising the expiration of the statute of limitations as an affirmative defense.

      On July 19, 2016, Gateway filed a motion for summary judgment, arguing that
because Appellant knew of Decedent’s injuries as early as March 24, 2014, the notice

       2
          The complaint also contained allegations against GHS Holdings, LLC (“GHS”), Clarksville
Holdings, LLC d/b/a Clarksville Health System, G.P. (“Clarksville”), and LP Clarksville, LLC d/b/a
Signature HealthCARE of Clarksville (“Signature HealthCARE”). Appellant’s claims against GHS and
Clarksville were voluntarily dismissed without prejudice on September 9, 2015. Appellant’s claims
against Signature HealthCARE were submitted to arbitration by agreed order of December 17, 2015 and
later voluntarily dismissed with prejudice by agreed order on October 18, 2016. Accordingly, Gateway is
the only defendant at issue in this appeal.
                                                 -2-
letter sent on May 15, 2015, was untimely, and therefore did not have the effect of
extending the statute of limitations. As such, Gateway argued that Appellant’s complaint
was untimely. In response to the motion for summary judgment, Appellant contended that
Decedent had been adjudicated incompetent at the time of the accrual of this health care
liability action and therefore the statute of limitations was tolled until his death on May
24, 2015, when “his incapacity was removed.” According to Appellant, the statute of
limitations therefore began to run on the date of Decedent’s death; accordingly, the notice
letter sent on May 15, 2015, was timely and extended the statute of limitations for
another 120 days. In support, Appellant included a copy of the August 27, 2013
emergency order of guardianship entered by the Oklahoma court.

       On September 12, 2016, the trial court entered an order granting Gateway’s
motion for summary judgment. Therein, the trial court noted that, although it examined
the Oklahoma order in search of any language that would constitute an adjudication of
incompetency, the Oklahoma order contains no provision adjudicating Decedent
incompetent. The trial court further found that the Oklahoma order was a temporary
order; however, the trial court found nothing in the record indicating what action, if any,
the Oklahoma court took at the thirty day review hearing.

        On October 7, 2016, Appellant subsequently filed a motion to alter or amend the
trial court’s ruling, attaching to the motion the minutes from the October 2, 2013 hearing
in Oklahoma. The trial court entered an order denying Appellant’s motion to alter or
amend on November 15, 2016. The trial court first noted that Appellant failed to show
why this document had not been presented in response to Gateway’s motion for summary
judgment. The trial court, however, went on to consider the merits of Appellant’s
argument. The trial court nevertheless concluded that the language of the minutes from
the Oklahoma court merely constituted the entry of another temporary order because
nothing in the record established that the Oklahoma court ever made a determination on
the merits adjudicating Decedent as incompetent.

                                      Issues Presented

         Appellant presented the following issues for our review, which are taken from her
brief:

         1. Whether the trial court was in error in failing to interpret the Oklahoma
         statute about guardianship and the Oklahoma court’s ruling regarding the
         guardianship order in a liberally construed manner and in a light most
         favorable to the non-moving party.
         2. Whether the trial court was in error in finding the statute of limitations
         had expired when Austin Amos Harjo had been previously adjudged to be
         incompetent or to have lost his legal rights in the state of Oklahoma.

                                             -3-
                                   Standard of Review

        The trial court in this case granted summary judgment in favor of Gateway.
Summary judgment is appropriate where: (1) there is no genuine issue with regard to the
material facts relevant to the claim or defense contained in the motion; and (2) the
moving party is entitled to judgment as a matter of law on the undisputed facts. Tenn. R.
Civ. P. 56.04. On appeal, this Court reviews a trial court’s grant of summary judgment de
novo with no presumption of correctness. Rye v. Women’s Care Ctr. of Memphis,
MPLLC, 477 S.W.3d 235, 250 (Tenn. 2015) (citing Bain v. Wells, 936 S.W.2d 618, 622
(Tenn. 1997)), cert. denied, 136 S. Ct. 2452, 195 L.Ed. 2d 265 (2016). In reviewing the
trial court’s decision, we must view all of the evidence in the light most favorable to the
nonmoving party and resolve all factual inferences in the nonmoving party’s favor.
Luther v. Compton, 5 S.W.3d 635, 639 (Tenn. 1999); Muhlheim v. Knox Cnty. Bd. of
Educ., 2 S.W.3d 927, 929 (Tenn. 1999). If the undisputed facts support only one
conclusion, then the court’s summary judgment will be upheld because the moving party
was entitled to judgment as a matter of law. See White v. Lawrence, 975 S.W.2d 525,
529 (Tenn. 1998); McCall v. Wilder, 913 S.W.2d 150, 153 (Tenn. 1995). When a moving
party has filed a properly supported motion for summary judgment, the nonmoving party
must respond by pointing to evidence that shows summary judgment is inappropriate.
Rye, 477 S.W.3d at 264–65.

                                          Analysis

       Because this is an appeal from a grant of summary judgment, we must first
determine the undisputed facts relevant to our analysis. In this case, Appellant concedes
that her health care liability claim accrued on or about March 24, 2014, the date that
Decedent was discharged from Gateway. Likewise, there is no dispute that this health
care liability action is governed by a one-year statute of limitations, which limitations
period may be extended by one-hundred twenty days when proper pre-suit notice is
provided to the defendant health care provider. See Tenn. Code Ann. § 26-26-116
(providing that the statute of limitations in a health care liability action is one year from
discovery of the alleged injury); Tenn. Code Ann. § 29-26-121 (“When notice is given to
a provider as provided in this section, the applicable statutes of limitations and repose
shall be extended for a period of one hundred twenty (120) days from the date of
expiration of the statute of limitations and statute of repose applicable to that provider.”).
Such pre-suit notice, however, must be sent “within the statutes of limitations and statutes
of repose applicable to the provider[.]” Tenn. Code Ann. § 29-26-121(a)(3). Based upon
an accrual date of March 24, 2014, pre-suit notice was therefore required to be sent on or
before March 24, 2015, notwithstanding some form of tolling of the statute of limitations.
Because Appellant sent her pre-suit notice on May 15, 2015, more than one-year from the
accrual of this cause of action, her notice was untimely and did not serve to extend the
applicable statute of limitations, unless some other law serves to toll the statute of

                                            -4-
limitations. As such, in the absence of some form of tolling, the trial court correctly
concluded that Appellant’s claim was barred by the statute of limitations.

       Appellant argues, however, that tolling under Tennessee Code Annotated section
28-1-106 is present in this case to extend the statute of limitations. Gateway apparently
concedes that if tolling under section 28-1-106 is present, Appellant’s claim was timely.
Gateway argues, however, that Appellant failed to meet her burden to establish the
applicability of section 28-1-106. We therefore proceed to address that question.

        For purposes of this appeal, section 28-1-106 provides:

        If the person entitled to commence an action is, at the time the cause of
        action accrued, either under eighteen (18) years of age, or adjudicated
        incompetent, such person, or such person’s representatives and privies, as
        the case may be, may commence the action, after legal rights are restored,
        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
        restoration of legal rights.

Tenn. Code Ann. § 28-1-106 (2015).3 Appellant argues that this provision applies
because Decedent was “adjudicated incompetent” by the Oklahoma order of
        3
          Section 28-1-106 was amended in 2016 to clarify the circumstances under which tolling may
apply for an adult who lacks capacity. The current version of the statute provides the following additional
language:

        (b) Persons over the age of eighteen (18) years of age are presumed competent.
        (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
        individual did not and could not reasonably have known of the accrued cause of action.
        (3) Any person asserting lack of capacity and the lack of a fiduciary or other
        representative who knew or reasonably should have known of the accrued cause of action
        shall have the burden of proving the existence of such facts.
        (4) Nothing in this subsection (c) shall affect or toll any statute of repose within this code.
        (d) For purposes of this section, the term “person who lacks capacity” means and shall be
        interpreted consistently with the term “person of unsound mind” as found in this section
        prior to its amendment by Chapter 47 of the Public Acts of 2011.

                                                    -5-
guardianship, which Appellant asserts remained in effect until Decedent’s death. In
contrast, Gateway argues that the order of guardianship is insufficient to constitute an
adjudication of incompetency as required by section 28-1-106.

        Few cases have construed the “adjudicated incompetent” language included in
section 28-1-106. One such case, Johnson v. UHS of Lakeside, LLC, No. W2015-01022-
COA-R3-CV, 2015 WL 9426034 (Tenn. Ct. App. Dec. 23, 2015), perm. app. denied
(Tenn. May 6, 2016), serves as the cornerstone of both the parties’ arguments and the
trial court’s decision. In Johnson, a patient was injured while being treated at a mental
health facility. Prior to the injury, a physician had executed a Certificate of Need
indicating that the patient was confused, disoriented, and unable to take care of his basic
needs, which certificate allowed the patient to be held pending a court order. Following
the patient’s injury, the Shelby County General Sessions Court entered an order admitting
the patient for “[e]mergency [d]iagnosis and [t]reatment,” based upon probable cause that
the patient was subject to involuntary admission pursuant to state law. Id. at *1. In
addition to this order, the record also contained an undated Admission Summary signed
by the general sessions court purporting to provide approval for the admission of the
patient to the mental health facility.

       Months after the patient’s initial injury, his wife, the plaintiff, filed a petition to be
appointed the patient’s conservator. The probate court granted the petition and therefore
entered an order removing the patient’s legal rights. Id. at *2. The patient thereafter died,
and the plaintiff filed a suit against the mental health facility for the injuries sustained by
the patient while there. Although the plaintiff attempted to comply with the pre-suit
notice requirements, the plaintiff’s complaint was filed beyond one-year and 120 days
from the date of the patient’s injury. As such, the mental health facility filed a motion to
dismiss on the basis of the expiration of the statute of limitations. The plaintiff responded
that the statute of limitations was tolled by operation of section 28-1-106. The trial court
eventually granted the mental health facility’s motion to dismiss.

       This Court agreed that the statute was inapplicable because, at the time the cause
of action accrued, the patient had not been “adjudicated incompetent,” as required by
section 28-1-106. In reaching this result, we considered the plain language of the statute
as a whole:

        [O]ur review of the statute at issue demonstrates that the meaning of the
        phrase “adjudicated incompetent” is clarified by the surrounding language
        in the statute. Specifically, the statute provides that the plaintiff may

2016 Tennessee Laws Pub. Ch. 932 (S.B. 1597), eff. April 27, 2016. The amended statute only applies,
however, to “to causes of action filed on or after” the effective date of the statute. Because this case was
filed on August 7, 2015, the amended statute does not apply. Accordingly, all citations to section 28-1-
106 in this case are to the pre-2016 version of the statute.

                                                   -6-
       commence the action “after legal rights are restored” within the applicable
       statute of limitations unless that time exceeds three years and, in that case,
       within three years “from restoration of legal rights.” Tenn. Code Ann. § 28-
       1-106. Pursuant to [the accepted rules of statutory construction], the term
       “adjudicated incompetent” must be read in conjunction with the other parts
       of the statute that clearly contemplate a loss and restoration of “legal
       rights.” Undoubtedly, it is the courts, rather than physicians, who can
       adjudicate an individual’s legal rights. Furthermore, our holding is
       supported by this Court’s Opinion in Foster v. Allbright, 631 S.W.2d 147,
       150 (Tenn. Ct. App. 1982), which previously used the term “adjudication of
       incompetency” to refer to an order appointing a conservatorship, implying
       that this term denotes judicial action. Based on the foregoing, we conclude
       that the statutory language clearly contemplates that judicial intervention is
       necessary in order for an individual to be “adjudicated incompetent.”

Johnson, 2015 WL 9426034, at *6. Based upon this language and other law concerning
disabilities for purposes of tolling the statute of limitations, we concluded that to establish
tolling pursuant to section 28-1-106, “a plaintiff’s mental incompetency must have been
judicially adjudicated at the time his cause of action accrued.” Id. (citing McMillan v.
Tennessee Board of Probation & Parole, No. M2001-01843-COA-R3-CV, 2002 WL
31109735 (Tenn. Ct. App. Sept. 24, 2002), perm. app. denied (Tenn. Dec. 16, 2002);
Foster v. Allbright, 631 S.W.2d 147, 150 (Tenn. Ct. App. 1982)). Based upon this
interpretation, we concluded that section 28-1-106 was inapplicable because the plaintiff
failed to prove that any “orders of the court had been entered on th[e] issue” of the
patient’s competency at the time his cause of action accrued, i.e. at the time he sustained
his injury. Id. at *7. Since the Opinion in Johnson, other decisions have likewise
required a judicial order regarding the injured party’s competence prior to the accrual of
the patient’s claim. See Jones v. City of Franklin, 677 F. App’x 279, 280–81 (6th Cir.
2017) (“[T]he term ‘adjudicated incompetent,’ by any reasonable interpretation, means
that the person must have been the subject of judicial declaration that he was incompetent
to handle his own affairs as a matter of law.”); Woodruff by & through Cockrell v.
Walker, No. W2016-01895-COA-R3-CV, 2017 WL 2304306, at *7 (Tenn. Ct. App. May
26, 2017) (declining to apply section 28-1-106 where there was no court order concerning
incompetence until after the accrual of the cause of action).

       Here, Appellant does not dispute that section 28-1-106 requires a judicial
determination in order for Decedent to have been adjudicated incompetent. Rather,
Appellant asserts that prior to the accrual of Decedent’s cause of action on March 24,
2014, an order had been entered by the Oklahoma court effectively adjudicating
Decedent as incompetent for purposes of section 28-1-106, which order remained in
effect until Decedent’s death. In response to Gateway’s motion for summary judgment,
Appellant submitted an August 27, 2013 Emergency Order Appointing a Guardian for
Decedent based upon allegations that “irreparable harm [would] be done” if a guardian
                                           -7-
was not appointed. As such, Appellant and her sister were appointed as guardians for
Decedent. The order, however, was entered ex parte and was temporary, with a review
hearing set to occur on September 25, 2013. Because of the temporary nature of this
order, the trial court ruled that it was insufficient to show that Decedent was adjudicated
incompetent at the time Decedent’s cause of action accrued.

        We agree. It is well-settled that it is the plaintiff’s burden to establish that the
injured party was incompetent “during the entire time necessary to toll the statute.”
McMillan, 2002 WL 3110973, at *3; see also Johnson, 2015 WL 9426034, at *7 (“A
plaintiff seeking an exception to the statute of limitations carries the burden of
demonstrating its applicability.”). In addition, under our summary judgment standard,
when a defendant files a motion for summary judgment that shifts the burden to the
plaintiff, the plaintiff “‘must do more than simply show that there is some metaphysical
doubt as to the material facts’” but must come forward with specific evidence showing
that summary judgment is inappropriate. Rye, 477 S.W.3d at 265 (quoting Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 1356, 89 L.
Ed. 2d 538 (1986)). Even assuming that an ex parte order of guardianship could serve as
an adjudication of incompetence, the subject order by its very terms is emergency in
nature and extends only until the September 25, 2013 review hearing date. Indeed, under
Oklahoma statutory law, the guardianship court has jurisdiction to appoint a permanent
guardian only “[a]fter the service of notice in a proceeding seeking the appointment of a
guardian[.]” Okla. Stat. Ann. tit. 30, § 1-113. Before this notice, it appears that Oklahoma
law only allows the guardianship court to enter a “temporary order of guardianship
during the progress of the proceedings that would be in the best interest of the ward.”
Okla. Stat. Ann. tit. 30, § 1-114. Such an emergency temporary order, however, must be
reviewed “not more than twenty (20) days from the time of making such order, to show
cause why the order should not be granted for temporary guardianship.” Id. Here, it is
undisputed that the emergency guardianship order entered on August 27, 2013 was
entered ex parte, without notice to all parties entitled to such notice. Consequently, it
appears that this order was merely temporary in nature and required further judicial
review after notice to remain in effect. As such, this order, standing alone, is insufficient
to show that that Decedent was adjudicated incompetent at the time of the accrual of his
cause of action on or around March 24, 2014, or thereafter, for purposes of tolling the
applicable statute of limitations.

       Appellant asserts, however, that additional information in the record supports the
conclusion that the August 27, 2013 temporary order of guardianship had been extended
and was in effect at the time of the accrual of Decedent’s action until his death.
Specifically, Appellant cites the minutes from an October 2, 2013 hearing before the
Oklahoma court in which the court orally ruled that the emergency guardianship would
“remain in full force and effect until further orders of [c]ourt.” As such, Appellant asserts
that at the time of the accrual of Decedent’s action, he was under a court order of

                                            -8-
guardianship that removed his legal rights, sufficient to meet the standard set forth in
Johnson as to an adjudication of incompetency.

        From our review of the record, the minute entry relied upon by Appellant was only
presented to the trial court in conjunction with Appellant’s motion to alter or amend the
trial court’s judgment. In her brief, however, Appellant does not raise the denial of her
motion to alter or amend as an issue presented for review. Generally, only those issues
that are specifically presented for review and included in a statement of the issues section
of the appellant’s brief will be considered by this Court. Tenn. R. App. P. 13(b) (“Review
generally will extend only to those issues presented for review.”); Champion v. CLC of
Dyersburg, LLC, 359 S.W.3d 161, 163 (Tenn. Ct. App. 2011) (“An issue not raised in an
appellant’s statement of the issues may be considered waived.”). This Court has
previously held that consideration of the denial of a motion to alter or amend may be
waived by failure to comply with the Rules of this Court. See Progeny Mktg. v. Farmers
& Merchants Bank, No. M2003-02011-COA-R3-CV, 2005 WL 819732, at *11 (Tenn.
Ct. App. Apr. 7, 2005).

       Even if we were to consider Appellant’s motion to alter or amend notwithstanding
Appellant’s failure to raise the denial of that motion as an issue, we note that Appellant
has failed to show that the minutes from the October 2, 2013 hearing are a proper matter
to be considered in a motion to alter or amend. As we explained in In re M.L.D., 182
S.W.3d 890 (Tenn. Ct. App. 2005):

              The purpose of a Rule 59.04 motion to alter or amend a judgment is
       to provide the trial court with an opportunity to correct errors before the
       judgment becomes final. Bradley v. McLeod, 984 S.W.2d 929, 933
       (Tenn.Ct.App.1998) (overruled in part on other grounds by Harris v.
       Chern, 33 S.W.3d 741 (Tenn. 2000)). The motion should be granted when
       the controlling law changes before the judgment becomes final; when
       previously unavailable evidence becomes available; or to correct a clear
       error of law or to prevent injustice. Id. A Rule 59 motion should not be
       used to raise or present new, previously untried or unasserted theories or
       legal arguments. Local Union 760 of Intern. Broth. of Elec. Workers v.
       City of Harriman, No. E2000-00367-COA-R3[-]CV, 2000 WL 1801856, at
       *4 (Tenn. Ct. App. Dec. 8, 2000) perm. app. denied (Tenn. May 14, 2001),
       see Bradley, 984 S.W.2d at 933 (holding: a Rule 59 motion should not be
       used to raise new legal theories where motion for summary judgment is
       pending).

Id. at 895. Thus,

       In order to sustain a motion to alter or amend under Rule 59.04 based on
       newly discovered evidence, “it must be shown that the new evidence was
                                           -9-
       not known to the moving party prior to or during trial and that it could not
       have been known to him through exercise of reasonable diligence.”

Kirk v. Kirk, 447 S.W.3d 861, 869 (Tenn. Ct. App. 2013) (quoting Seay v. City of
Knoxville, 654 S.W.2d 397, 399 (Tenn. Ct. App. 1983) (citations omitted)). Moreover, as
our Supreme Court explained:

       When additional evidence is presented in support of such a motion, the trial
       court should consider the factors applicable to a motion to revise a partial
       summary judgment pursuant to Rule 54.02 of the Tennessee Rules of Civil
       Procedure: the moving party’s effort to obtain the evidence in responding to
       the summary judgment; the importance of the new evidence to the moving
       party’s case; the moving party’s explanation for failing to offer the
       evidence in responding to the summary judgment; the unfair prejudice to
       the non-moving party; and any other relevant consideration. Harris v.
       Chern, 33 S.W.3d 741, 744 (Tenn. 2000) (“Cases analyzing Rule 59.04
       motions to alter or amend . . . offer some guidance in determining the
       standard for revising non-final orders.”).

Stovall v. Clarke, 113 S.W.3d 715, 721 (Tenn.2003). The trial court’s decision on
whether to grant a Rule 59.04 motion to alter or amend a judgment is reviewed under an
abuse of discretion standard. Id. (citing Harris, 33 S.W.3d at 746).

        We cannot conclude that the factors outlined above favor consideration of the
October 2, 2013 minutes in this case. First, we note that nothing in Appellant’s motion to
alter or amend indicates Appellant’s efforts to locate the minutes at issue. Rather,
Appellant’s motion merely states that in light of the trial court’s previous ruling,
Appellant “was able to obtain the minutes from the October 2, 2013 hearing.” Even more
egregious, Appellant does not explain the reason that Appellant was unable to obtain
copies of the minutes from the October 2, 2013 hearing prior to the hearing on Gateway’s
summary judgment motion. Indeed, the Oklahoma hearing took place nearly three years
prior to the hearing on Gateway’s motion for summary judgment. There is also no dispute
that Appellant was present at the October 2, 2013 hearing and therefore was aware of the
Oklahoma court’s ruling.

        We also conclude that to allow Appellant to rely on the October 2, 2013 minutes
would result in unfair prejudice to Gateway. This Court has previously held that where
information was “clearly available” to a litigant prior to the judgment, allowing a litigant
to rely on that evidence in a motion to alter or amend “would result in unfair prejudice to
the [party opposing the motion to alter or amend].” Haynes v. Lunsford, No. E2015-
01686-COA-R3-CV, 2017 WL 446987, at *5 (Tenn. Ct. App. Feb. 2, 2017) (citing Kirk,
447 S.W.3d at 869). Because the minutes from the Oklahoma hearing were likewise
“clearly available” to Appellant prior to the trial court’s grant of summary judgment in
                                            - 10 -
this case, we must conclude that it would be unfair to allow Appellant to rely on this
document. Although Appellant undoubtedly believes that the October 2, 2013 minutes
are important to the analysis of this case, given that the other factors at issue clearly
militate against consideration and Appellant failed to raise the denial of her motion to
alter or amend as an issue in her brief, we decline to consider the late-filed evidence in
this case.

        Based upon the only evidence properly before the trial court, we therefore
conclude that the trial court did not err in concluding that the undisputed facts established
that Appellant failed to meet her burden to show that Decedent was “adjudicated
incompetent” at the time of the accrual of this cause of action and thereafter. Thus,
regardless of whether Decedent in fact lacked capacity at this time, Appellant failed to
show that the requirements of Tennessee Code Annotated section 28-1-106 were met in
order to toll the statute of limitations. See Johnson, 2015 WL 9426034, at *6 (citing
Tenn. Code Ann. § 28-1-106 (2015) (requiring a court order adjudicating the injured
person as incompetent for tolling under section 28-1-106 to apply). In the absence of
tolling, the undisputed facts establish that Appellant’s notice was untimely, see Tenn.
Code Ann. § 29-26-121(a)(3), and that the statute of limitations was not thereby
extended. As such, Appellant’s complaint was filed outside the applicable statute of
limitations. See Tenn. Code Ann. § 29-26-121(c). The trial court therefore did not err in
granting summary judgment in favor of Gateway based upon the expiration of the
applicable statute of limitations.

                                        Conclusion

       The judgment of the Circuit Court of Montgomery County is affirmed, and this
cause is remanded to the trial court for all further proceedings as are necessary and may
be consistent with this Opinion. Costs of this appeal are taxed to Appellant, Bobbie Harjo
Caudill, and her surety.




                                                    _________________________________
                                                    J. STEVEN STAFFORD, JUDGE




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