                                                                                          12/14/2018
               IN THE COURT OF APPEALS OF TENNESSEE
                          AT KNOXVILLE
                         Assigned on Briefs October 17, 2018

 JERMAINE REESE v. THE ESTATE OF STANLEY CUTSHAW, ET AL.

                 Appeal from the Chancery Court for Greene County
                  No. 20150444     Douglas T. Jenkins, Chancellor
                       ___________________________________

                           No. E2017-01923-COA-R3-CV
                       ___________________________________


CHARLES D. SUSANO, JR., J., concurring.

        I concur in the majority’s discussion and decision regarding the inapplicability of
the doctrine of exoneration. I am also of the opinion that if the statute of limitations had
been timely raised as an affirmative defense, it would have barred Wife’s cause of action.
However, I believe that our Fryer decision and Rules 8.03 and 12.08 of the Rules of Civil
Procedure, mandate the conclusion that the trial court erred in ambushing Wife by
applying an affirmative defense that was never pled nor tried. To the extent that the
majority opinion could be read as holding that the trial court’s error was harmless
because the statute of limitations had run, I disagree with that reasoning, because I
believe it is circular in nature. The conclusion that the error was harmless can, however
be supported by other reasoning of the majority. For example, I agree with the majority
that the error was harmless, but I would support this conclusion simply on the trial court’s
determination that the release executed by the parties was valid and enforceable and
supports the conclusion that the property securing the debt should be deeded back to
Wife. I write separately to emphasize my view that Fryer was correctly decided, that it is
squarely on point and applicable to this case, and that this opinion should not be read as
representing an exception to the general principle stated therein, namely that a trial court
commits reversible error by sua sponte applying a statute of limitations defense at the end
of trial that was never pled, raised by the parties, or tried by implied consent.




                                          _______________________________
                                          CHARLES D. SUSANO, JR., JUDGE
