The opinion
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
3:20-CV-00239-MOC-DCK
JAMES MCDONALD BROWN, JR., )
)
Plaintiff, )
)
vs. )
) ORDER
TRUIST BANK, SUCCESSOR BY MERGER )
WITH SUNTRUST BANK, )
)
Defendant. )
________________________________________)
THIS MATTER is before the Court on Defendant’s motion to dismiss Plaintiff’s pro se
Complaint, brought pursuant to Federal Rule of Civil Procedure 12(b)(6). Doc. No. 42. For
reasons set forth below, Defendant’s motion to dismiss is granted.
I. BACKGROUND
This diversity action stems from a Last Will and Testament (the “Will”), which was
executed by Stella Jean Brown, Plaintiff’s aunt. On October 2, 2019, Plaintiff—a Will
beneficiary—filed a pro se Complaint against Defendant—the Will executor—in the United
States District Court for the District of South Carolina, essentially alleging: (1) it failed to fulfill
its contractually obligated duty as executor of Ms. Brown’s Will by not presenting the Will to
probate and failing to act as executor, and (2) it failed to prevent the fraud allegedly committed
by Mr. Weaver. See Doc. No. 1-1. The following facts are taken from that Complaint and
construed in the light most favorable to Plaintiff. See E.I. du Pont de Nemours & Co. v. Kolon
Indus., Inc., 637 F.3d 435, 448 (4th Cir. 2011) (citation omitted).
On January 14, 1954, Ms. Brown executed her Will at the National Savings and Trust
Company in Washington, D.C.1 Doc. No. 1-1 at 1. An official receipt from the Will
acknowledges that National Savings would keep the Will safely in its vault and serve as executor
of the estate. Id. In 1972, Ms. Brown moved from Washington, D.C. to Knoxville, Tennessee. Id.
In 1978, a court declared her incompetent and thus appointed a conservator to manage her estate.
Id.
Sometime before Ms. Brown’s death, Plaintiff “asked the bank to search the will vault for
her will” but bank employees were unable to find the Will at the time. Id. at 1–2. Ms. Brown
passed away on November 1, 2011. Id. Thereafter, in July 2013, Plaintiff was informed through a
phone call from his half-sister, Kim Sides, that Ms. Brown had executed a will, and that her
estate was worth more than $800,000. Id. at 2. In his Complaint, Plaintiff asserts that “[t]his was
the first time [he] was [made] aware that [his] aunt, [Ms.] Brown, had made a will.” Id.
After learning about Ms. Brown’s sizable estate, Plaintiff traveled to Knoxville to involve
himself in the probate proceedings. Id. After acquiring counsel, Plaintiff obtained the annual
reports prepared by Ms. Brown’s conservators on May 14, 2014. Plaintiff reviewed those
documents over the next five days, ultimately discovering that Ms. Brown’s first conservator
committed fraud against her in 1984, diminishing her checking account by $11,193.25. Id.
Thereafter, Plaintiff hired a Knoxville Certified Public Accountant to review the reports, who
agreed that Ms. Brown was defrauded and who found that the funds would be worth over
$150,000. Id.
1 A predecessor of Defendant Truist Bank.
At some point along the way, SunTrust Bank2 acquired National Savings. Plaintiff and
his attorney continued to inquire about the Will with SunTrust. Id. In July 2014, Plaintiff
obtained a copy of “the Record of Testamentary Papers” from another source, which provided
the bank had been paid to protect the Will and serve as its executor. Nevertheless, the SunTrust
attorney and vice president continued to maintain they were never given the original will. Id. at
3. Before the Tennessee probate court, SunTrust and its employees asserted the same. Id.
In May 2015, Plaintiff lost his case in the probate court and Ms. Brown was declared
intestate. Later, he emailed and called General Counsel for SunTrust to again ask for help
locating the Will. Id. Within a matter of days, Lee Stephenson, a SunTrust attorney and vice
president, called and told him “she was holding [Ms.] Brown’s original will in her hands.” Id.
Plaintiff inquired how and where the Will was located, but Stephenson told him that “her legal
department had advised her ‘to be of no further service to [him].’” Id. The Will shows Defendant
was named the executor of Ms. Brown’s Will, and that Plaintiff, as heir of Ms. Brown’s brother,
is a beneficiary of her Will. See Doc. No. 43-1.
Plaintiff asserts that Suntrust “then assumed their responsibility as executor of [Ms.]
Brown’s estate.” Doc. No. 1-1 at 4. Even so, they nevertheless refused to pursue the fraud by the
Conservator. “Their failure resulted in at least a $150,000 loss to the estate” and required
Plaintiff to expend “more than $175,000” in “attorney’s fees alone” to attempt to recover from
that fraud. Id. Plaintiff has also expended funds on “court costs, fees, costs of transcripts and
documents, and traveling and lodging related to more than 65 days traveling more than 20,000
miles.” Id. Plaintiff seeks in excess of $200,000 in damages. Id. at 4-5.
2 Defendant Truist Bank is the successor by merger of SunTrust Bank.
Finally, Plaintiff alleges that Suntrust employees have all acted to “limit their liability for
losing the original will.” Id. Plaintiff alleges that Defendant has made no explanation as to how
or why the original Will was lost, and asks “Shouldn’t fraudulent concealment of the facts
related to the concealment of the Will toll any statute of limitations?” Doc. No. 45 at 9. Plaintiff
argues that “there is no doubt at all the original Will was quite improperly concealed from
probate until August 4, 2015.” Id. In response to Defendant’s allegation that Plaintiff had “actual
notice” the original Will was missing in 2011, Plaintiff asks “How could I have possibly known
the original Will was missing, when the bank continued to deny it had every been given the
original will? … I had no certain knowledge that the bank had been concealing the Will
until…the bank’s archives had finally located the original Will in early June 2015.” Id. at 16-17.
Plaintiff states “My cause of action became evident when the bank finally admitted the Will had
been located in bank archives.” Id. at 17.
Plaintiff claimed that he knew the Tennessee statute of limitations for filing a suit against
the fiduciaries of a person under a disability was three years from their death, but believes that he
had been improperly denied access to Ms. Brown’s annual conservator reports until May 14,
2014. Id. at 14. Plaintiff argues that these facts should “allow that statute of limitations to be
tolled due to fraudulent concealment,” which would, by his calculations, give him “until May 14,
2017 to file a suit against Chancellor Weaver for the fraud against my aunt.” Id. at 14-15.
However, Plaintiff has already pursued the claim against Weaver in state court, and the state
court dismissed Plaintiff’s lawsuit based on statute of limitations. See Brown v. Weaver, No.
E2018-0083-COA-R3-CV, 2018 WL 6706285 (Tenn. Ct. App. December 19, 2018) (perm app.
denied, Tenn. S.C. April 11, 2019). Plaintiff appealed, and the Tennessee Court of Appeals
likewise denied Plaintiff’s claims. Id. Plaintiff appealed again to the Tennessee Supreme Court,
and the Tennessee Supreme Court declined to review. Id.
On October 2, 2019 Plaintiff filed a Complaint in the United States District Court for the
District of South Carolina. Doc. No. 1. On May 18, 2020 Defendant filed a motion to dismiss,
along with a memorandum in support of the motion. Doc. Nos. 42, 43. On June 1, 2020 Plaintiff
submitted a brief in response to Plaintiff’s motion to dismiss. Doc. No. 45.
II. DISCUSSION
A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of the complaint. See
In re Birmingham, 846 F.3d 88, 92 (4th Cir.), as amended (Jan. 20, 2017). To survive such a
motion, a complaint must contain sufficient factual allegations “to raise a right to relief above the
speculative level, thereby nudging its claims across the line from conceivable to plausible.”
Vitol, S.A. v. Primerose Shipping Co., 708 F.3d 527, 543 (4th Cir. 2013) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
When ruling on a motion to dismiss, the Court considers “the complaint in its entirety, as
well as documents attached or incorporated into the complaint.” E.I. du Pont de Nemours, 637
F.3d at 448 (citation omitted). The Court “must accept as true all of the factual allegations
contained in the complaint” and draw “all reasonable inferences” in favor of the non-movant. Id.
Even so, factual allegations are insufficient if they rely on “naked assertions” and “unadorned
conclusory allegations” that are “devoid of factual enhancement.” In re Birmingham, 846 F.3d at
92. The Court “is not obliged to assume the veracity of the legal conclusions drawn from the
facts alleged.” Id.
Additionally, Plaintiff is a pro se litigant without representation. Pleadings made by pro
se litigants are held to “less stringent standards” than those with representation, and pleadings
filed by pro se litigants are “to be liberally construed.” See Haines v. Kerner, 404 U.S. 519, 520
(1972); see Erickson v. Pardus, 554 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97,
106 (1972)). Where the context makes clear a litigant’s essential grievance, “the complainant’s
additional invocation of general legal principles need not deter the district court from resolving
that which the litigant himself has shown to be his real concern.” Sinclair v. Mobile 360, Inc.,
417 Fed. Appx. 235, 243 (4th Cir. 2011) (quoting Beaudett v. City of Hampton, 775 F.2d 1274,
1278 (4th Cir. 1985)).
A. Choice of Law
Plaintiff has essentially claimed that Defendant: (1) failed to fulfill its contractually
obligated duty as executor of Ms. Brown’s Will by not presenting the Will to probate and failing
to act as executor, and (2) failed to prevent the fraud allegedly committed by Mr. Weaver. See
Doc. No. 1-1. Defendant has characterized Plaintiff’s claims as “basically alleging a ‘failure of
contracted fiduciary promises’ for Defendant’s inability to timely locate the original Will in
2011.” Doc. No. 43 at 3.
First, this Court must determine what law to apply to the instant case. Under the Erie
Doctrine, when a court is sitting in diversity and the difference in procedure between state law
and federal law is “outcome determinative,” the court should apply the state’s substantive laws.
See Erie R.R. v. Tompkins, 304 U.S. 64 (1938); see also Klaxon Co. v. Stentor Elec. Mfg. Co.,
313 U.S. 487, 496 (1941). State statutes of limitations are considered substantive law, and
therefore “if ‘the statute of limitations would bar recovery in a State court, a federal court ought
not to afford recovery.’” Bonham v. Weinraub, 413 Fed. App’x 615, 616 (4th Cir. 2011) (citing
Guaranty Trust Co. v. York, 326 U.S. 99, 110 (1945)). Additionally, “state tolling provisions are
effectively substantive for Erie purposes.” Rowland v. Patterson, 882 F.2d 97, 99 (4th Cir. 1989)
(citing Walker v. Armco Steel Corp., 446 U.S. 740, 750-51 (1980)) (emphasis in original).
As noted by Defendant, “The underlying will contest, probate of the Will, and Plaintiff’s
related litigation were all governed and decided under Tennessee law.” Doc. No. 43 at 5. For
those reasons and because statutes of limitation and tolling provisions are effectively substantive,
the Court applies Tennessee law to the instant case.
For choice of law questions involving contracts, Tennessee follows the rule of lex loci
contractus. Ohio Cas. Ins. Co. v. Travelers Indem. Co., 493 S.W.2d 465, 467 (Tenn. 1973). This
rule provides that a contract is presumed to be governed by the law of the jurisdiction in which it
was executed absent a contrary intent. Id. If a contract was indeed formed between Ms. Brown
and a predecessor of Defendant, then that contract was negotiated and formed in Washington
D.C. Therefore, Washington D.C. contract law applies to any claim for alleged breach of
contract.
For choice of law questions involving tort claims such as breach of fiduciary duty,
Tennessee follows the “most significant relationship” approach of the Restatement (Second) of
Conflicts of Laws. Hataway v. McKinley, 830 S.W.2d 53, 59 (Tenn. 1992). Under this approach,
the law of the state where the injury occurred will be applied unless some other state has a more
significant relationship to the litigation. Id. Because the injury stemming from the fraud allegedly
committed by Mr. Weaver occurred in Tennessee and no other state has a more significant
relationship to the litigation, Tennessee law applies to any breach of fiduciary duty claim.
B. Breach of Contract
Whether a claim is barred by an applicable statute of limitations is a question of law, and
thus a question for the Court. Brown v. Erachem Comilog, Inc., 231 S.W.3d 918, 921 (Tenn.
2007); Owens v. Truckstops of Am., 915 S.W.2d 420, 424 (Tenn. 1996). Plaintiff’s Complaint
mentions the word “contract” several times in describing what he alleges was Defendant’s
obligation to Ms. Brown. Plaintiff did not attach any documents to his Complaint in support of
his claim that a contract existed, nor did he allege how he would have standing to assert such a
claim.
But assuming that a contract did exist between Ms. Brown and Defendant and that
Plaintiff has standing to bring such a claim, Plaintiff’s breach of contract claim that Defendant
failed to timely locate the Will and serve as executor is time-barred. Under Washington D.C.
law, a cause of action involving a simple contract, express or implied, must be brought within
three years of when the action accrued. D.C. Code Ann. § 12-301(7).
Plaintiff admits that he knew the Will was lost prior to Ms. Brown’s death in 2011.
Plaintiff asserts that he visited the bank in Washington D.C. before Ms. Brown died and
requested a copy of the Will. In short, Plaintiff was aware that Defendant was unable to produce
the Will before, and certainly as of, Ms. Brown’s death on November 1, 2011. In July of 2013,
Plaintiff again became aware of the missing Will upon a telephone call from Ms. Sides. In
August of 2013, Plaintiff appeared in court in Knoxville, Tennessee to ask to retain legal counsel
regarding Ms. Brown’s estate. At the absolutelatest, Plaintiff knew that Defendant had lost the
Will in June of 2015 when Defendant called Plaintiff to let them know they had located Ms.
Brown’s will. Therefore, it is likely that the statute of limitations began running in 2011 and at
the latest in 2015. Plaintiff brought the instant case in 2019—eight years at the longest or four
years at the shortest after the limitations clock began running. Because the statute of limitations
is three years, this claim is time-barred.
Moreover, neither equitable tolling nor fraudulent concealment apply to this claim. In
Washington D.C., equitable tolling is a very limited doctrine. See Sayyad v. Fawzi, 674 A.2d
905, 906 (D.C. 1996). It permits a plaintiff to avoid the bar of the statute of limitations if, in
despite of all due diligence, the plaintiff cannot obtain vital information supporting the claim.
See East v. Graphic Arts Indus. Joint Pension Trust, 718 A.2d 153, 160 n.21 (D.C. 1998). Once
the plaintiff gains, or by due diligence could obtain, the information necessary to file suit, the
plaintiff must do so within a “reasonable” time, which is unlikely to extend to the full limitations
period. Id. at 161. Here, Plaintiff, through the exercise of due diligence, was able to discover that
the Will was missing and that Defendant was the intended executor. Plaintiff received additional
confirmation of his discoveries when Defendant notified him that the Will had been found.
Clearly, Plaintiff was able to obtain vital information supporting his claim within the established
limitations period. As such, equitable tolling does not apply.
To prove fraudulent concealment in Washington D.C., a plaintiff “must show (1) that
defendants engaged in a course of conduct designed to conceal evidence of the alleged
wrongdoing and that (2) [the plaintiffs] were not on actual or constructive notice of that
evidence, despite (3) their exercise of diligence.” Firestone v. Firestone, 76 F.3d 1205, 1209
(D.C. Cir. 1996)(internal citations omitted). Here, the Court is disturbed both by Defendant’s
inability to find the Will for such a long period of time and by Defendant’s unwillingness to
explain to Plaintiff where and how they ultimately located the Will. The Court is further
unsettled by Defendant’s repeated assertions that they never had the original Will. However, the
three elements of fraudulent concealment are not satisfied because Plaintiff, through the exercise
of due diligence, was on actual or constructive notice of evidence that the Will was lost and that
Defendant was not serving as executor of the Will as promised.
In sum, Plaintiffs claim for breach of contract is time-barred and is not saved by either
the doctrine of equitable tolling or fraudulent concealment.
C. Breach of Fiduciary Duty for Failing to Timely Locate Will and Act as Executor
To recover for a breach of fiduciary duty claim, Plaintiff must sufficiently plead 1) a
fiduciary relationship, 2) breach of the resulting fiduciary duty, and 3) injury to plaintiff or
benefit to defendant because of said breach. Ann Taylor Realtors, Inc. v. Sporup, No. W2010-
00188-COA-R3-CV, 2010 WL 4939967, at *3 (Tenn. Ct. App. Dec. 3, 2010). Thus, Plaintiff's
claim of breach of fiduciary duty sounds in tort. Cartwright v. Cartwright, No. W2016-01423-
COA-R3-CV, 2018 WL 3814632 (Tenn. Ct. App. Aug. 10, 2018) (citing Mike v. Po Grp., Inc.,
937 S.W.2d 790, 795 (Tenn. 1996)).
A cause of action in tort exists when “two elements ... coalesce: (1) a breach of some
legally recognized duty owed by the defendant to the plaintiff and (2) some legally cognizable
damage caused to the plaintiff by the breach of duty.” Potts v. Celotex Corp., 796 S.W.2d 678,
681 (Tenn. 1990). The statute of limitations for claims based in tort is 3 years “from the accruing
of the cause of action.” Tenn. Code Ann. § 28-3-105 (2017). Here, Plaintiff is basically alleging
a "failure of contracted fiduciary promises" for SunTrust's inability to timely locate the original
Will in 2011. See Doc. No. 3 at 1.
To the extent that Plaintiff has pleaded a cause of action for breach of fiduciary duty, and
taking the allegations in Plaintiff's Complaint as true, Plaintiff was aware in November of 2011
that the original Will was not to be found. Doc. No. 1-1 at 1. As a direct result, Plaintiff alleges
he was forced to expend funds for attorney fees and travel expenses beginning in 2011, thus
incurring an injury or damages. Id. at 4. Plaintiff certainly knew or reasonably should have
known by the date of the filings in the probate proceedings that Defendant had failed to timely
locate Ms. Brown's Will.
Plaintiff was aware that Defendant had not produced the Will as of July 2013 and
appeared in court to investigate Ms. Brown’s estate in August 2013. According to his Complaint,
Plaintiff obtained a copy of the “Record of Testamentary Papers,” which Plaintiff alleges proved
that Defendant had been charged with holding and protecting the original Will for Ms. Brown.
See id. at 2. Then, in February of 2015, Plaintiff admits he had e-mail evidence from a Suntrust
vice president, and deposition testimony of a Suntrust employee in charge of the will vault, that
contradicted his proof as they alleged that Defendant only had a copy of the Will. Id. at 3. The
Probate Court decided the will contest between Sides, Plaintiff, and the intestate heirs in May of
2015, holding that there was no will and the estate was intestate. According to the Complaint,
Defendant subsequently discovered and delivered the Will in June of 2015. Id. at 4.
Plaintiff filed this lawsuit on October 2, 2019, more than eight years after his breach of
fiduciary duty cause of action likely accrued in 2011. Even if the claim did not accrue in 2011,
he knew or reasonably should have known facts supporting his cause of action in July 2013,
August 2013, July 2014, February 2015, and May/June of 2015. Therefore, assuming, arguendo,
that Defendant owed some legally recognized duty to Plaintiff, he was aware or should have first
been aware of the breach of that duty eight years ago, and at the latest in May/June of 2015, four
years before his claim in this case. Because the statute of limitations is three years for breach of
contract claims in Washington D.C., this claim is time barred.
D. Breach of Fiduciary Duty for Failing to Prevent Fraud Committed by
Conservator
Because Plaintiff’s breach of fiduciary duty claim for failure to prevent fraud is identical
to the claim brought by Plaintiff in state court, this Court finds the claim barred by collateral
estoppel. Collateral estoppel, often referred to as issue preclusion, promotes judicial efficiency
and fairness. Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326 (1979). The question of whether
collateral estoppel applies is a question of law. Morris v. Esmark Apparel, 832 S.W.2d 563, 566
(Tenn. Ct. App. 1991). The party invoking collateral estoppel bears the burden of proof. State v.
Scarbrough, 181 S.W.3d 650, 655 (Tenn. 2005). To succeed on its collateral estoppel claim,
Defendant must show:
(1) that the issue to be precluded is identical to an issue decided in an earlier
proceeding, (2) that the issue to be precluded was actually raised, litigated, and
decided on the merits in the earlier proceeding, (3) that the judgment in the earlier
proceeding has become final, (4) that the party against whom collateral estoppel is
asserted was a party or is in privity with a party to the earlier proceeding, and (5)
that the party against whom collateral estoppel is asserted had a full and fair
opportunity in the earlier proceeding to contest the issue now sought to be
precluded.
Mullins v. State, 294 S.W.2d 529, 535 (Tenn. 2009). In order to determine whether Defendant
has sufficiently pled facts that prove Plaintiff’s second claim is barred by equitable estoppel, a
review of the the prior litigation on this issue is necessary.
On May 10, 2017, Plaintiff sued Mr. Weaver in Tennessee state court for allegedly
committing fraud when Mr. Weaver served as Ms. Brown’s conservator. See Brown v. Weaver,
2018 WL 6706285, at *1. On December 29, 2017, Mr. Weaver filed a motion to dismiss, and the
trial court granted the motion. Id. at *2. Plaintiff appealed, and the court of appeals ruled that 28-
1-106 was the controlling statute of limitations for the claim. Id. at *3. The court determined that
Plaintiff had not “allege[d] any facts in his complaint that indicate he could not have timely
discovered [Mr. Weaver’s] actions through the exercise of reasonable care and diligence.” Id. at
*6. The documents necessary to make Plaintiff aware of the cause of action were all public
recordand “were readily discovered following a single examination of the conservatorship file.”
Id. The court affirmed the trial court’s dismissal, concluding that “having failed to set forth
sufficient allegations to support a finding of fraudulent concealment or that in the exercise of
reasonable care and diligence that he could not have known of [Mr. Weaver’s] alleged wrongful
acts, dismissal of [Plaintiff’s] complaint is appropriate.” Id.
The issue in Brown v. Weaver was alleged fraud by Ms. Brown’s conservator Mr.
Weaver, and is factually identical to the Plaintiff’s claim in the instant case that Defendant failed
to fulfill its fiduciary duty by preventing the fraud allegedly committed by Mr. Weaver. See
Brown, 2018 WL 6706285, at *1. For an issue to be “actually raised, litigated, and decided on
the merits” it must generally be “properly raised by the pleadings or otherwise placed in issue
and was actually determined in the prior proceeding.” Mullins, 294 S.W.2d at 536. In Brown,
Plaintiff pled the issue in question, and a dismissal is sufficient for the issue to be “decided on
the merits” and for the judgment in Brown to “become final.” See Tenn. R. Civ. P. Rule
41.02(3); see also Goeke v. Woods, 777 S.W.2d 347, 349 (Tenn. 1989). Plaintiff in the instant
case is the same plaintiff in Brown, and therefore the fourth requirement is satisfied. In order for
Plaintiff to have had a “full and fair opportunity” to litigate the issue, Tennessee requires that this
Court consider: “(1) the procedural and substantive limitations placed on the plaintiff in the first
proceeding, (2) the plaintiff’s incentive to litigate the claim fully in the first proceeding, and (3)
the parties’ expectation of further litigation following the conclusion of the first proceeding.”
Mullins, 294 S.W.2d at 538–39. Plaintiff had full incentive to litigate the claim fully, but the
statute of limitations prevented him from proceeding. The record is silent as to the parties’
expectation of further litigation. Because all five criteria for collateral estoppel have been
satisfied, this claim is collaterally estopped.
E. Breach of Fiduciary Duty and Tolling Doctrines
Finally, this Court holds that neither claim for breach of fiduciary duty qualifies for
tolling. Tolling doctrines can “suspend or extend the running of the limitations period.” Story v.
Bunstine, 538 S.W.3d 455, 465 (Tenn. 2017) (citing Redwing v. Catholic Bishop for Diocese of
Memphis, 363 S.W.3d 436, 459 (Tenn. 2012)). As previously noted, this Court applies state law
on substantive issues such as tolling doctrines. See Rowland, 882 F.2d at 99. In civil
proceedings, the Tennessee Supreme Court has recognized the doctrines of equitable estoppel
and fraudulent concealment but has declined to recognize the doctrine of equitable tolling in civil
cases. Redwing, 363 S.W.3d at 460.
Equitable estoppel comes from the maxim that “no person may take advantage of his or
her own wrong.” Id. For practical purposes, equitable estoppel tolls the statute of limitations
“when the defendant has misled the plaintiff into failing to file suit within the statutory
limitations period.” Id. The party invoking equitable estoppel bears the burden of proof. Id.
Therefore, Plaintiff must have alleged facts sufficient, when read in the light most favorable to
Plaintiff, that support tolling of the statute under the doctrine of equitable estoppel. Plaintiff must
show that Defendant induced him to “put off” filing his suit by pleading “specific promises,
inducements, suggestions, representations, assurances, or other similar conduct by the defendant
that the defendant knew, or reasonably should have known, would induce the plaintiff to delay
filing suit.” Id. Essentially, equitable estoppel “applies only when the defendant engages in
misconduct” and “always involves allegations that the defendant misled the plaintiff.” Id. at 460-
61. Plaintiff must also demonstrate that his delay in filing suit “was not attributable to [his] own
lack of diligence.” Id. at 460 (citing Hardcastle v. Harris, 170 S.W.3d 67, 85 (Tenn. Ct. App.
2004)). Tolling under equitable estoppel ends when “plaintiffs knows or should know that the
defendant has misled him.” Id. at 461.
The statute of limitations is tolled under the fraudulent concealment doctrine when “’the
defendant has taken steps to prevent the plaintiff from discovering he was injured.” Id. at 462
(citing Fahrner v. SW Mfg., Inc., 48 S.W.3d 141, 146 (Tenn. 2001)). Fraudulent concealment
tolls the statute of limitation when “the plaintiff could not have reasonably known he was
injured.” Id. Put simply, “the tolling period equals the amount of time the defendant misled the
plaintiff” because “[a]ny other result would reward the defendant for his deception.” Id.
Here, the Court declines to apply either tolling doctrine because the Plaintiff has not
adequately pled facts alleging that Defendant engaged in misconduct or took steps that induced
Plaintiff to put off filing suit. Furthermore, Plaintiff’s delay cannot be attributed to his lack of
diligence.
Plaintiff acknowledges the statute of limitations has run on his claims but asserts the
statute of limitations should be tolled because he believes facts regarding the status of Ms.
Brown’s Will are still being withheld. Plaintiff, however, offers no plausible reason why he did
not discover his alleged cause of action before October 2, 2019, when he filed this action in the
District Court for South Carolina. Plaintiff’s claim that Defendant “concealed” information is
belied by the facts stated in his Complaint. Plaintiff was aware of Defendant’s alleged breach of
fiduciary duty as early as November 2011, and as recently as 2016.
In Plaintiff’s response brief, he alleges that one of Defendant’s employees “made false
and misleading statements regarding the original will.” Doc. No. 45 at 2. Plaintiff also states that
although he is not a trained investigator, he has “worked diligently to make sense of all that has
happened.” Id. at 3. Plaintiff details significant facts regarding his personal investigation and
repeated attempts to locate the Will. See id. at 9-16. When Plaintiff gained access to Ms.
Brown’s conservator reports, he “spent the next five days reading every page of those
conservator reports and discovered that [Ms. Brown’s] first conservator had committed a fraud
against her.” Id. at 2. Plaintiff alleges that Defendant “kept secret from me” that Ms. Brown’s
original Will was in their vault, and that “this extraordinary coincidence of fiduciary failures of
the bank and of her conservators suggest nothing less than a conspiracy to have the estate of [Ms.
Brown] declared intestate.” Id. at 5. Plaintiff explicitly states “Facts related to the concealment of
the Will are still being withheld by the bank. Is this not fraudulent concealment?” Id. at 9.
Even if there are some facts still being withheld by the bank, Plaintiff admits he was
made aware of the will issues in the probate case of Ms. Brown in July of 2013. Plaintiff admits
he appeared before the probate judge in August of 2013 to retain counsel and read every page of
the conservator reports for Ms. Brown. In July of 2014, Plaintiff admits he had “proof” in the
form of a “Record of Testamentary Papers” that Defendant had possession of the original Will
and had been paid a fee to guard and serve as executor of Ms. Brown’s estate. See Doc. No. 1-1
at 2. That fact, coupled with the missing will, was certainly one of the times when Plaintiff’s
cause of action accrued. 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. Carvell, 900 S.W.2d at 29.
In February of 2015, Plaintiff admits he had e-mail evidence from a Suntrust vice
president and deposition testimony of the an employee in charge of the will vault, that
contradicted his proof, as they alleged that Defendant only had a copy of the Will. Doc. No. 1-1
at 3. At that point, again, Plaintiff knew or reasonably should have known he had a cause of
action for his alleged breach of fiduciary duty. Plaintiff lost his will contest in May of 2015, but
Defendant obtained and delivered the original Will in June of 2015. Id. at 5. For a third time,
Plaintiff was on notice of his alleged cause of action.
To prove fraudulent concealment, Plaintiff must prove that Defendant took affirmative
action to conceal the cause of action and that Plaintiff could not have discovered the cause of
action despite exercising reasonable diligence. Vance v. Schulder, 547 S.W.2d 927, 930 (Tenn.
1977). Plaintiff allegedly spent $176,000 litigating the issues with the lost will in the Probate
case, but failed to assert any causes of action against Defendant. Plaintiff is unable to show that
he “could not have discovered the cause of action despite exercising reasonable diligence”
because his Complaint demonstrates he discovered his alleged injury several times. Given
everything Plaintiff knew, and when he knew it, Plaintiff has not offered any plausible reason as
to why he waited until October 2, 2019 to bring this action against Defendant.
Based on the facts read in the light most favorable to Plaintiff, Defendant has made “false
and misleading statements” that led Plaintiff to believe that Defendant did not have in its
possession Ms. Brown’s original Will, but Plaintiff, through the exercise of due diligence, was
able to uncover facts that put him on reasonable notice of any potential breach of fiduciary duty
claims he might have against Defendant. Therefore, no tolling doctrine applies.
ORDER
IT IS, THEREFORE, ORDERED that Defendant’s motion to dismiss, Doc. No. 42, is
GRANTED.
Signed: November 23, 2020
Vo OY
oit-eanco
Max O. Cogburn Ji
United States District Judge Hira gg te
17