In Re Estate of Davis

IN THE SUPREME COURT OF TENNESSEE

AT NASHVILLE

February 10, 2010 Session

IN RE ESTATE OF MARY REEVES DAVIS

Appeal by Permission from the Court of Appeals, Middle Section

Circuit Court for Davidson County, Probate Division

No. 99P-1955 David Randall Kennedy, Judge

No. M2009-00660-SC-S09-CV - Filed April 23, 2010

In this interlocutory appeal, the administrator of the estate of the decedent argues that a

petition for probate, filed more than two years after the probate of an earlier will, is time-

barred by Tennessee Code Annotated section 32-4-108, and, therefore, the trial court

erroneously denied his motion for summary judgment. Because the statute is one of

limitations rather than repose, because exceptions within the statute do not preclude tolling

based upon fraudulent concealment, and because there are genuine issues of fact as to

whether the subsequent will was fraudulently concealed, the trial court’s denial of summary

judgment is affirmed.

Tenn. R. App. P. 11; Judgment of the Circuit Court Affirmed

G ARY R. W ADE, delivered the opinion of the Court, in which J ANICE M. H OLDER, C.J.,

C ORNELIA A. C LARK, W ILLIAM C. K OCH, J R., and S HARON G. L EE, JJ., joined.

Ames Davis and Paul C. Hayes, Nashville, Tennessee, for the appellant, Ames Davis,

Administrator of the Estate of Mary Reeves Davis.

Jeffrey Alan Greene, Nashville, Tennessee, for the appellee, W. Terry Davis.

OPINION

Facts and Procedural Background

Mary Reeves Davis, the widow of country music’s “Gentleman” Jim Reeves

(“Reeves”),1 died on November 11, 1999. On July 30, 2001, a document purporting to be

1

Gentleman Jim Reeves “was perhaps the biggest male star to emerge from the Nashville sound”

and has been inducted into the Country Music Hall of Fame. David Vinopal, Biography of Jim Reeves,

(continued...)

her last will and testament, dated September 10, 1976 (“1976 Will”), was admitted for

probate. W. Terry Davis (the “Petitioner”), who married Ms. Davis after Reeves’s death and

remained wedded to her for some thirty years, was a named beneficiary. There were other

beneficiaries, however, including Ms. Davis’s brothers and sisters and Reeves’s brothers and

sisters. On August 10, 2005, over four years after the probate of the 1976 Will, the Petitioner

filed a petition seeking the probate of a holographic will dated March 7, 1996 (“1996 Will”).

As the sole beneficiary of the 1996 Will, the Petitioner asserted that the existence of the

document “was unknown for several years until it was recently . . . found.” He contended

that the 1996 Will was fraudulently concealed by Ed Gregory and Ms. Davis’s conservator

and nephew, William White, thereby causing the delay in its discovery.

At some point prior to 1997, Ms. Davis had sold memorabilia pertaining to Reeves

to United Shows, an entity owned and operated by Gregory. The memorabilia included

several items from the Jim Reeves Museum and the Reeves residence. In the initial probate

proceeding, Gregory and White testified that they found the 1976 Will in the museum records

on the day of Ms. Davis’s death and provided the original document to Ames Davis, the

attorney who was named to administer the estate (the “Administrator”).2 When the 1976 Will

was admitted to probate, the Petitioner expressed suspicion that a more current will could be

found in the records that Gregory had purchased from Ms. Davis; however, according to the

Petitioner, Gregory would not at that time permit the records to be searched.

The Petitioner claims that shortly before filing his petition, he found the 1996 Will in

a safe in Gregory’s office after Gregory had been required to vacate the premises incident to

proceedings in bankruptcy. The box containing the 1996 Will was marked: “Returned to

E.A. Gregory by me on December 19, 1997 at Nolensville, TN. William H. White,

Conservator for Mrs. Mary Reeves Davis.”

The promissory notes supplied by Gregory for the purchase of the memorabilia were

made payable to White, as Ms. Davis’s conservator. Sometime after the sale, White,

allegedly without the permission of Ms. Davis or the approval of the conservatorship court,

surrendered United Shows’s notes and released the collateral securing the notes. The

1

(...continued)

allmusic, http://www.allmusic.com/cg/amg.dll?p=amg&sql=11:hifixql5ldde~T1. Reeves died at age forty

in an airplane crash on July 31, 1964. Id. “Though Reeves had died, his popularity did not vanish — in fact,

his sales increased following his death,” and a number of posthumous releases topped the U.S. country music

charts. Id. Reeves’ recordings included the songs “Have I Stayed Away Too Long?” and “How Long Has

It Been?” Id. (follow “songs” link; then follow “all songs” link; then go to third page in list).

2

Ames Davis, a partner in the law firm of Waller, Lansden, Dortch & Davis LLP in Nashville, is

apparently unrelated to the Petitioner.

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Petitioner contends that White did this in exchange for promissory notes made to him

personally and for other favors from Gregory, including the fraudulent concealment of the

1996 Will, which did not include White or his family as beneficiaries.

In response to the petition to probate the 1996 Will, the Administrator filed a motion

for summary judgment alleging that the cause of action was time-barred by Tennessee Code

Annotated section 32-4-108 (2007), which provides, in relevant part, that “[a]ll actions or

proceedings to set aside the probate of any will . . . must be brought within two (2) years

from entry of the order admitting the will to probate, or be forever barred.” On February 3,

2009, the Davidson County Circuit Court, Probate Division, denied the relief sought. The

trial court held that this state “recognized a narrow fraudulent concealment exception to the

limitations period set forth in Tenn. Code Ann. § 32-4-108,” as confirmed in Phillips v.

Phillips, 526 S.W.2d 439 (Tenn. 1975), and ruled that the Petitioner had “presented sufficient

circumstantial evidence to create a genuine issue of material fact with respect to” the

fraudulent concealment of the 1996 Will, thus avoiding the entry of a summary judgment

favorable to the Administrator. See Tenn. R. Civ. P. 56.03.

At the request of the Administrator, the probate court granted an interlocutory appeal

pursuant to Rule 9 of the Tennessee Rules of Appellate Procedure, observing that some

decisions since Phillips indicate that section 32-4-108 might be a statute of repose rather than

one of limitations. On May 6, 2009, the Court of Appeals declined to hear the appeal. We

granted the Administrator’s application for permission to appeal to consider two issues: first,

whether the governing statute is one of repose, establishing an absolute substantive bar to

claims of the Petitioner, or one of limitations; and second, if it is a statute of limitations,

whether the two-year period is subject to tolling by fraudulent concealment.

Standard of Review

This appeal involves the interpretation of Tennessee Code Annotated section 32-4-

108. Statutory construction is a question of law that is reviewed de novo without any

presumption of correctness. In re Estate of Tanner, 295 S.W.3d 610, 613 (Tenn. 2009).

When dealing with statutory interpretation, well-defined precepts apply. Our primary

objective is to carry out legislative intent without broadening or restricting the statute beyond

its intended scope. Houghton v. Aramark Educ. Res., Inc., 90 S.W.3d 676, 678 (Tenn. 2002).

In construing legislative enactments, we presume that every word in a statute has meaning

and purpose and should be given full effect if the obvious intention of the General Assembly

is not violated by so doing. In re C.K.G., 173 S.W.3d 714, 722 (Tenn. 2005). When a statute

is clear, we apply the plain meaning without complicating the task. Eastman Chem. Co. v.

Johnson, 151 S.W.3d 503, 507 (Tenn. 2004). Our obligation is simply to enforce the written

language. Abels ex rel. Hunt v. Genie Indus., Inc., 202 S.W.3d 99, 102 (Tenn. 2006). It is

only when a statute is ambiguous that we may reference the broader statutory scheme, the

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history of the legislation, or other sources. Parks v. Tenn. Mun. League Risk Mgmt. Pool,

974 S.W.2d 677, 679 (Tenn. 1998).

The scope of review of a grant or denial of a motion for summary judgment also

involves a question of law. As such, no presumption of correctness attaches, and our task

is to review the record to determine whether the requirements of Rule 56 of the Tennessee

Rules of Civil Procedure have been satisfied. Hunter v. Brown, 955 S.W.2d 49, 50-51 (Tenn.

1997); Cowden v. Sovran Bank/Cent. S., 816 S.W.2d 741, 744 (Tenn. 1991). A motion for

summary judgment may be granted only when there is no genuine issue of material fact and

the moving party 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); Byrd v. Hall, 847 S.W.2d 208, 214

(Tenn. 1993). The party seeking the summary judgment has the ultimate burden of

persuading the court “that there are no disputed, material facts creating a genuine issue for

trial . . . and that he is entitled to judgment as a matter of law.” Byrd, 847 S.W.2d at 215.

At the summary judgment phase, “it is not the role of a trial or appellate court to weigh the

evidence or substitute its judgment for that of the trier of fact.” Martin v. Norfolk S. Ry. Co.,

271 S.W.3d 76, 87 (Tenn. 2008) (citing Byrd, 847 S.W.2d at 211).

Analysis

1. Is Tennessee Code Annotated section 32-4-108 a statute of repose or statute of

limitations?

The Administrator claims that under this Court’s recent decisions in Calaway ex rel.

Calaway v. Schucker, 193 S.W.3d 509 (Tenn. 2005), and Penley v. Honda Motor Co., 31

S.W.3d 181 (Tenn. 2000), section 32-4-108 is a statute of repose subject to no exceptions

other than those expressly included in the body of the legislation. The Petitioner, on the other

hand, contends that section 32-4-108 is a simple statute of limitations, and that the two-year

period for filing an action to set aside the probate may be extended when a subsequent will

has been fraudulently concealed.

In Calaway, a case construing the three-year statute of repose for medical malpractice

actions, we differentiated between a statute of limitations and statute of repose:

A statute of limitations normally governs the time within which legal

proceedings must be commenced after a cause of action accrues. A statute of

repose, on the other hand, limits the time within such an action may be brought

and is unrelated to the accrual of any cause of action.

193 S.W.3d at 515 (citing Jones v. Methodist Healthcare, 83 S.W.3d 739, 743 (Tenn. Ct.

App. 2001)). Unlike the time for filing under a statute of limitations, which begins when a

claim accrues, the period for a statute of repose “begins when a specific event occurs,

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regardless of whether a cause of action has accrued or whether any injury has resulted.” 54

C.J.S. Limitations of Actions § 5 (2005). In Calaway, we observed that “[s]tatutes of repose

are substantive and extinguish both the right and the remedy while statutes of limitation are

procedural, extinguishing only the remedy.” 193 S.W.3d at 515 (quoting Jones, 83 S.W.3d

at 743). If the claimant’s injury occurs within the period of repose, but he does not

commence his action until after the period has ended, the action has accrued but has been

extinguished. Similarly, “[w]here the injury occurs outside the [repose] period, no

substantive cause of action ever accrues, and a claimant’s actions are likewise barred.” Id.

(quoting Penley, 31 S.W.3d at 184). Statutes of repose, therefore, “impose ‘an absolute time

limit within which action must be brought.’” Id. (quoting Penley, 31 S.W.3d at 184); see also

Creech v. Addington, 281 S.W.3d 363, 376 (Tenn. 2009) (“Res judicata, much like . . . a

statute of repose, may serve as a complete bar to relitigation . . . .”). Importantly for purposes

of this case, “[i]t appears that when the General Assembly has desired that exceptions apply

to a statute of repose . . . the exception is either found with the language of the statute itself,

or in another part of the code specifically referencing the particular statute of repose.”

Penley, 31 S.W.3d at 184-85; see also Calaway, 193 S.W.3d at 516.

At the time of Ms. Davis’s death, the statute governing the time period for challenging

a probated will provided as follows:

32-4-108. Statute of limitations. – All actions or proceedings to set aside the

probate of any will, or petitions to certify a will for an issue of divisavit vel

non, must be brought within two (2) years from entry of the order admitting the

will to probate, or be forever barred, saving, however, to persons under the age

of eighteen (18) years or of unsound mind, at the time the cause of action

accrues, the rights conferred by § 28-1-106.

Tenn. Code Ann. § 32-4-108 (1984 & Supp. 1999). This statutory language, which remains

unchanged today, see Tenn. Code Ann. § 32-4-108 (2007), does not include an exception for

fraudulent concealment. In fact, the explicit exceptions are only for minors or those “of

unsound mind, at the time the cause of action accrues.” Thus, were we to find section 32-4-

108 to be a statute of repose, it would not be subject to tolling for fraudulent concealment,

and the filing of the 1996 Will would be untimely.

To be sure, this Court has referred in passing to section 32-4-108 as a “statute of

limitations.” See In re Estate of Barnhill, 62 S.W.3d 139, 141 & n.2 (Tenn. 2001); Phillips,

526 S.W.2d at 440. Furthermore, our Court of Appeals has consistently characterized section

32-4-108 as a statute of limitations; however, our research indicates that none of their rulings

addressed whether it might instead be a statute of repose. See, e.g., Estate of Morris v.

Morris, No. W2009-00573-COA-R3-CV, 2009 WL 4642613, at *6 (Tenn. Ct. App. Dec. 9,

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2009) (finding that the statute of limitations was not tolled because plaintiffs did not provide

adequate proof of fraudulent concealm ent); Nichols v. Schubert, No.

M2004-02567-COA-R3-CV, 2005 WL 3555574, at *10-11 (Tenn. Ct. App. Dec. 28, 2005)

(same); In re Estate of Ramey, No. E2003-00544-COA-R3-CV, 2004 WL 40528, at *2-3

(Tenn. Ct. App. Jan. 8, 2004) (same); Cooper v. Austin, 837 S.W.2d 606, 610 (Tenn. Ct.

App. 1992) (referring to “the two year statute of limitations in T.C.A. § 32-4-108,” but

holding that it was inapplicable to the underlying proceedings).

Until now, we have not specifically determined whether, in light of our decisions in

Calaway and Penley, section 32-4-108 should be classified as a statute of repose or a statute

of limitations. Several factors support the conclusion that the statute is one of limitations,

creating a procedural rather than a substantive bar on causes of action filed beyond the two-

year period.

Initially, the heading of section 32-4-108, is “Statute of limitations.” Although

Tennessee Code Annotated section 1-3-109 (2003) directs that headings to statutes are not

part of the statutes themselves, it is permissible under widely held rules of statutory

construction to consider a heading for legislative intent and purpose. State ex rel. Rector v.

Wilkes, 436 S.W.2d 425, 428 (Tenn. 1968) (citing Sealed Power Corp. v. Stokes, 127

S.W.2d 114, 117 (Tenn. 1939)); see 2A Norman J. Singer, Sutherland’s Statutory

Construction § 47:14 (6th ed. 2000). Moreover, the statute provides that “[a]ll actions or

proceedings to set aside the probate of any will . . . must be brought within two (2) years

from entry of the order admitting the will to probate” and that actions brought after the two-

year limitations period are barred unless the claimant was legally disabled “at the time the

cause of action accrues.” Tenn. Code Ann. § 32-4-108 (emphasis added). Rules of

construction establish that statutory language cannot be considered in a vacuum, but “should

be construed, if practicable, so that its component parts are consistent and reasonable.”

Marsh v. Henderson, 424 S.W.2d 193, 196 (Tenn. 1968). These two clauses, when read

together, indicate that a cause of action to set aside a probated will accrues at the time the

probate order is entered, and that the two-year period is related to that time of accrual for all

potential claimants, not just minors and those “of unsound mind.” This is consistent with a

statute of limitations, which “governs the time within which legal proceedings must be

commenced after a cause of action accrues”; in contrast, a statute of repose places no

particular reliance upon the accrual of a cause of action. See Calaway, 193 S.W.3d at 515.

Thus, the heading is perfectly consistent with the more plausible interpretation of the

substantive language.

Secondly, section 32-4-108 is distinguishable from the statutes of repose that this

Court construed in Calaway and Penley. In Calaway, we found that the plain language of

Tennessee’s medical malpractice statute – “‘[i]n no event shall any such action be brought

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more than three years after the date on which the negligent act or omission occurred’” –

expresse[d] a clear intent by the Legislature to absolutely limit to three years the time within

which malpractice actions can be brought.” 193 S.W.3d at 516 (quoting Tenn. Code Ann.

§ 29-26-116(a)(3) (2000)). The clarity of this language supports the classification of the

statute as one of repose, a substantive bar that “extinguish[es] both the right and the remedy.”

Id. at 515. Similarly, in the Penley case, this Court was able to declare a section of the

Tennessee Products Liability Act as a statute of repose. 31 S.W.3d at 183-84 (quoting Tenn.

Code Ann. § 29-28-103(a) (1980 & Supp. 1999) (“[I]n any event, the action must be brought

within ten (10) years from the date on which the product was first purchased for use or

consumption . . . .” (emphasis omitted))). Unlike the statutes at issue in Calaway and Penley,

section 32-4-108 lacks the modifiers “in any event” or “in no event,” and, in consequence,

does not so explicitly declare an absolute limitation on a cause of action. From this

perspective, the more appropriate construction is to interpret the statutory period as a

procedural bar, and, therefore, one of limitations rather than repose.

Thirdly, unlike statutes which have been designated statutes of repose, section 32-4-

108 makes reference to only one limitations period. By comparison, Tennessee Code

Annotated section 29-26-116 provides for a three-year statute of repose in addition to one-

year statute of limitations for medical malpractice actions; Tennessee Code Annotated

section 29-28-103 (2000) includes a ten-year statute of repose for product liability claims in

addition to the statutes of limitations appearing elsewhere in the code; Tennessee Code

Annotated section 47-18-110 (2001 & Supp. 2009) has a four-year statute of repose in

addition to a one-year statute of limitations for consumer protection violations; and

Tennessee Code Annotated section 48-18-601 (2002) provides for a three-year statute of

repose in addition to the one-year statute of limitations for breach of corporate fiduciary duty

claims. Although statutes of repose could exist independently from underlying statutes of

limitations, the existence of a statute of repose absent a corresponding statute of limitations

in the context of probate is unlikely.

Finally, the relative brevity of two years, especially in comparison to the seven-year

period which appeared in the earlier version of the statute, see Tenn. Code Ann. § 32-410

(1955), cautions against any determination that section 32-4-108 qualifies as a statute of

repose. Statutes of repose “create[] a substantive right in those protected to be free from

liability after the legislatively-determined period of time, beyond which the liability will no

longer exist and will not be tolled for any reason.” 54 C.J.S. Limitations of Actions § 5. To

endorse freedom from liability after a period of only two years in the administration of an

estate could produce unjust results.

For the aforementioned reasons, this Court holds that Tennessee Code Annotated

section 32-4-108 is a statute of limitations and that the two-year limitations period is a

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procedural bar that begins at the entry of the order of probate.

2. Does fraudulent concealment toll the two-year limitations period of Tennessee

Code Annotated section 32-4-108?

The probate court denied the Administrator’s motion for summary judgment based

upon language appearing in our 1975 decision in Phillips. In that case, this Court considered

whether Tennessee Code Annotated section 32-410 (now section 32-4-108) barred a suit to

set aside the probate of a will. Phillips, 526 S.W.2d at 440. As indicated, the statute at that

time required that an action to set aside a probated will be filed within seven years, with the

only enumerated exceptions permitting “persons under twenty-one years of age or of unsound

mind at the time the cause of action accrued” to bring an action three years after “the removal

of such disability.” Id. (citing Tenn. Code Ann. §§ 28-107 (1955 & Supp. 1974), 32-410

(1955)). As to whether the statute included an implicit exception, this Court observed that

“[i]n considering general statutes of limitation, [there is a] recognized . . . exception not

voiced in the statutes and which tolls the statute where, due to fraudulent concealment, a

plaintiff is unaware of his cause of action.” Id. (citations omitted). The Court, applying this

rule to the prior codification of section 32-4-108, “kn[e]w of no basic reason why the

fraudulent concealment exception should not be applicable to the special statute of

limitations.” Id. The Court made clear, “[h]owever, [that] while fraudulent concealment of

a cause of action will toll a general statute of limitations, fraud in and of itself will not.” Id.

Because the document had been on the public record for more than nine years before the suit

was filed, the facts in Phillips did not establish concealment of either the will or the alleged

forged signature on the will: “[N]o facts [we]re alleged which would support a finding of

fraudulent concealment,” and, therefore, it was not necessary for the Court to determine

whether the statute of limitations had been tolled. Id.

The Administrator first argues that the statements in Phillips regarding the

applicability of the fraudulent concealment exception to this particular statute of limitations

are merely dicta, to which we need not afford the effect of stare decisis. See, e.g., Dotson

v. Blake, 29 S.W.3d 26, 30 (Tenn. 2000) (quoting State ex rel. Pitts v. Nashville Baseball

Club, 154 S.W. 1151, 1155 (Tenn. 1913) (“[S]tare decisis ‘only applies with reference to

decisions directly upon the point in controversy’ and ‘only arises in respect of decisions

directly upon the points in issue.’”)). For that reason, he submits that this Court is not bound

by Phillips as precedent. Next, the Administrator argues that even if Tennessee Code

Annotated section 32-4-108 is considered a statute of limitations, it is not subject to any

exceptions except those specified in the statute. This argument is necessarily based on the

statutory construction canon expressio unius est exclusio alterius – to mention one thing is

to exclude others. See Overstreet v. TRW Commercial Steering Div., 256 S.W.3d 626, 633

(Tenn. 2008). Because the statute includes an exception to the limitations period for minors

and those who are “of unsound mind,” the Administrator contends that the General Assembly

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did not intend for there to be any other exceptions to the two-year requirement, including one

for fraudulent concealment. Finally, the Administrator argues that good policy reasons trump

any reason to allow tolling for fraudulent concealment.

As to the first argument, even if the language in Phillips technically qualifies as dicta,

the case has persuasive value and, more importantly, is entirely consistent with the

established law of this state. It is well-settled in Tennessee that statutes of limitations may

be tolled for a period of time where the defendant has taken actions to fraudulently conceal

a cause of action. See, e.g., Fahrner v. SW Mfg., Inc., 48 S.W.3d 141, 145 (Tenn. 2001)

(“Tennessee law has long recognized that the statute of limitations does not begin to run until

the plaintiff, exercising reasonable diligence, discovers the fraud which the defendant

wrongfully concealed.”); Vance v. Schulder, 547 S.W.2d 927, 930 (Tenn. 1977) (“Fraudulent

concealment of the cause of action by the defendant tolls the statute of limitations. It begins

to run as of the time of the discovery of the fraud by the plaintiff.”); Bodne v. Austin, 2

S.W.2d 104, 105 (Tenn. 1928) (quoting Whaley v. Catlett, 53 S.W. 131, 134 (Tenn. 1899))

(“[F]raudulent concealment of the cause of action will prevent the running of the statute.”);

Boro v. Hidell, 120 S.W. 961, 965 (Tenn. 1909) (citing several Tennessee cases supporting

the rule that fraudulent concealment tolls a statute of limitations). Further, the Court of

Appeals has found that fraudulent concealment, once established by the proof, can toll the

very statute of limitations at issue today. See, e.g., Nichols, 2005 WL 3555574, at *11; Roza

v. Estate of Reed, No. 01A01-9303-CV-0013, 1993 WL 439872, at *2-3 (Tenn. Ct. App.

Oct. 29, 1993).

Secondly, the expressio unius canon should be applied flexibly; “[c]anons of

construction, though helpful, should always be tested against the other interpretive tools at

a court’s disposal.” In re Estate of Tanner, 295 S.W.3d 610, 625 n.13 (Tenn. 2009).

Although some statutes expressly provide that fraudulent concealment is an exception to the

statute of limitations, courts have also traditionally applied this rule without any statutory

reference. See, e.g., Lindsey v. Allstate Ins. Co., 34 F. Supp. 2d 636, 649 (W.D. Tenn. 1999)

(holding that fraudulent concealment tolls Tennessee Code Annotated section 47-18-110, the

statute of limitations in the Tennessee Consumer Protection Act); Ray v. Scheibert, 450

S.W.2d 578, 579-80 (Tenn. 1969) (holding that the running of a limitations period applicable

to injuries to the person is tolled when the defendant fraudulently conceals the cause of

action from the plaintiff); Albert v. Sherman, 67 S.W.2d 140, 141 (Tenn. 1934) (holding that

fraudulent concealment of a cause of action for personal injuries will toll statute of

limitations). “[The l]egislature is presumed to know the state of the law on the subject under

consideration at the time it enacts legislation.” Lavin v. Jordan, 16 S.W.3d 362, 368 (Tenn.

2000) (quoting Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 899 (Tenn. 1992)). Because

courts may infer that our legislature knew that fraudulent concealment would typically apply

as an exception to a statute of limitations, there is little reason to interpret section 32-4-108

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in the manner advocated by the Administrator.

As support for his contention that no implicit exceptions to the two-year limitation

should apply, the Administrator cites the importance of finality in the administration of

estates. While finality is a worthy goal, the traditional tolling of the limitations period for

fraudulent concealment should cause minimal inconvenience in this area of the law. The

fraud, standing alone, does not toll the statute of limitations; it is the concealment of the fraud

that tolls the procedural bar. Phillips, 526 S.W.2d at 440. Years ago, in Woodfolk v. Marley,

40 S.W. 479, 480 (Tenn. 1897), this Court explained the nature of fraudulent concealment:

[T]he authorities . . . agree to the proposition that the defrauded party must not

be guilty of laches in ascertaining the fraud complained of, and that he was not

only not informed of it, but could not have been by his exercise of reasonable

diligence. In other words, in claiming exemption from the operation of the

statute he must aver and show that his continued ignorance of the fraud was

without fault or negligence on his part.

Id. In order to establish a fraudulent concealment that serves to toll a statute of limitations,

there must be proof that the cause of action was knowingly concealed from the plaintiff by

an actor who withheld information, misled the plaintiff, or failed to disclose despite a duty

to do so, and that because of this concealment, the plaintiff could not have discovered the

cause of action while exercising reasonable care and diligence. Pero’s Steak & Spaghetti

House v. Lee, 90 S.W.3d 614, 625 (Tenn. 2002). As stated, mere ignorance of a possible

cause of action does not toll the statute. See Phillips, 526 S.W.2d at 440. We, therefore,

hold that the two-year limitations period set forth in section 32-4-108 is subject to tolling for

fraudulent concealment.

Conclusion

Because Tennessee Code Annotated section 32-4-108 qualifies as a statute of

limitations subject to tolling by fraudulent concealment, and because the Administrator has

not contested on appeal whether there is a genuine issue of material fact as to the fraudulent

concealment of the 1996 Will, we affirm the order of the trial court denying the

Administrator’s motion for summary judgment. Costs are assessed against the estate of Ms.

Davis, for which execution may issue if necessary.

_________________________________

GARY R. WADE, JUSTICE

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