The opinion
08/21/2025
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
January 8, 2025 Session
DENNIS N. ETHEREDGE ET AL. v. ESTATE OF DORIS ETHEREDGE
Appeal from the Chancery Court for Putnam County
No. 2019-49 Ronald Thurman, Chancellor
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No. M2024-00916-COA-R3-CV
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This is the second appeal arising from this declaratory judgment action. The defendant died
during the pendency of this action. After a suggestion of the defendant’s death was filed
with the trial court, the defendant’s probate estate was substituted as the defendant. More
than one year after the defendant’s death, the defendant’s estate filed a motion to dismiss
on the ground the plaintiffs failed to properly revive the action against the defendant’s
estate as required by Tennessee Code Annotated § 30-2-320. The trial court agreed and
dismissed the action on the ground the plaintiffs did not follow the procedures of Tennessee
Code Annotated § 30-2-320 because they filed “neither an order of revivor nor the
complaint [from] this case in the Decedent’s probate proceeding, In re Estate of Doris
Etheredge, Putnam Co. Probate Court No. 20739 at any time, much less within one (1) year
of the Decedent’s date of death.” We affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed
FRANK G. CLEMENT JR., P.J., M.S., delivered the opinion of the court, in which ANDY D.
BENNETT and W. NEAL MCBRAYER, JJ., joined.
Charles Michels, Nashville, Tennessee, for the appellants, Larry Etheredge, Dennis N.
Etheredge, Evelyn Charlotte Crane, Cinde Etheredge Lucas, and Tammy Etheredge.
Henry D. Fincher, Cookeville, Tennessee, for the appellee, Estate of Doris Etheredge.
OPINION
FACTS AND PROCEDURAL HISTORY
In 1989, Nathan Etheredge and his wife, Doris Etheredge, entered into a postnuptial
agreement (“the Agreement”) that would control the disposition of each of their estates.1 It
specifically required that each party execute separate wills leaving “substantially all of their
respective property” to the survivor, then the survivor “shall devise substantially all of his
or her property owned at death, together with . . . the property received from his or her
predeceased spouse . . . to be divided equally between the parties’ children in equal shares.”
Thus, the Agreement required the first to die of Nathan Etheredge and Doris Etheredge to
leave his or her estate to the survivor, and then upon the survivor’s death, to divide the
estate of the survivor evenly, with each of Nathan Etheredge’s five biological children
receiving one seventh of the estate and each of Doris Etheredge’s two biological children
receiving one seventh of the estate. By its own terms, the agreement was “irrevocable in
the absence of a separate written agreement between the parties that specifically revoke[d]”
the Agreement.
While Mr. Etheredge incorporated the Agreement into his 2003 will, he did not
incorporate it into his 2015 will (“2015 Will”), which expressly excluded all of his children
as beneficiaries. Mr. Etheredge died in April 2018, and his 2015 Will was admitted to
probate.
On March 18, 2019, Mr. Etheredge’s five children (“Plaintiffs”), as named
beneficiaries of the Agreement, filed a complaint for declaratory judgment against Doris
Etheredge requesting that the trial court determine that the Agreement was valid and
enforceable and “that the 2015 Will is subject to the terms and conditions of the 1989
Agreement to Devise Property.” Because the Agreement prohibits the surviving spouse
from committing waste, Plaintiffs requested that, upon determining that the Agreement
governs the disposition of Nathan Etheredge’s estate, that Doris Etheredge be required to
file an accounting of all of her assets. Doris Etheredge died on January 9, 2021, while the
case was pending in the trial court, and her estate was substituted as the defendant.
Plaintiffs and the Estate of Doris Etheredge (“Defendant”) then filed cross motions
for summary judgment. After a hearing, the trial court granted Plaintiffs’ motion for
summary judgment and denied Defendant’s, finding that the Agreement had not been
revoked and held that the Agreement controls the disposition of Mr. and Ms. Etheredge’s
property that is subject to the Agreement.
Defendant appealed, and this court issued its opinion on August 22, 2023, vacating
the trial court’s grant of summary judgment and remanding for a determination of whether
1
The Agreement was executed by Nathan and Doris Etheredge and notarized.
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the Agreement was “knowledgeably entered into by Husband and Wife.” Etheredge v. Est.
of Etheredge, No. M2022-00451-COA-R3-CV, 2023 WL 5367681, at *3 (Tenn. Ct. App.
Aug. 22, 2023).
In the trial court on remand, Defendant filed a motion to dismiss the complaint “for
lack of subject matter jurisdiction . . . due to the failure of the Plaintiffs to properly revive
their claim against the Estate of Doris Etheredge.” After a hearing, the trial court, in its
May 30, 2024 order, granted Defendant’s motion to dismiss. The court reasoned:
It is . . . undisputed Plaintiffs did not follow the procedures of T.C.A. §
30-2-320. Plaintiffs filed neither an order of revivor nor the complaint [from]
this case in the Decedent’s probate proceeding, In re Estate of Doris
Etheredge, Putnam Co. Probate Court No. 20739 at any time, much less
within one (1) year of the Decedent’s date of death.
The trial court then dismissed the action with prejudice “as it was not, and now cannot, be
properly revived.”
This appeal followed.
ISSUES
Plaintiffs raised the following issues on appeal which we have consolidated and
restated as follows:
1. Whether the trial court erred in ruling that Plaintiffs’ complaint to determine
whether the disposition of Nathan Etheredge’s estate is subject to the Agreement is
required to be filed as a claim against Doris Etheredge’s Estate.
2. Whether the trial court erred in ruling that Plaintiffs’ complaint to determine
whether the Agreement governs the disposition of Nathan Etheredge’s estate is a
suit for the recovery of money arising out of a breach of contract by Doris Etheredge.
3. Whether the trial court erred in ruling that the specific performance exception to
revivor does not apply to Plaintiffs’ complaint to determine whether the disposition
of Nathan Etheredge’s estate is subject to the Agreement.
4. Whether the trial court erred in ruling that a failure to comply with Tennessee Code
Annotated § 30-2-320 terminates a court’s subject matter jurisdiction over a pending
complaint.
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5. Whether the trial court erred in dismissing Plaintiffs’ complaint with prejudice for
lack of subject matter jurisdiction.
Defendant raised the following issues on appeal, which we have consolidated and
restated as follows:
1. Whether the trial court properly dismissed Plaintiffs’ case because they failed to
revive their claim as required by Tennessee Code Annotated § 30-2-320?
2. Was the trial court correct in applying the holdings in the reported, non-overruled
cases of Mid-S. Pavers v. Arnco Const. Co., 771 S.W.2d 420 (Tenn. Ct. App. 1989),
Windsor Hosiery Mills, Inc. v. Haren, 437 S.W.2d 248 (Tenn. 1969) and Wunderlich
v. Fortas, 776 S.W.2d 953 (Tenn. Ct. App. 1989)?
3. Did the trial court correctly determine that the revivor requirements of Tennessee
Code Annotated § 30-2-320 were “mandatory and jurisdictional” as held in Windsor
Hosiery Mills, 437 S.W.2d at 250, Wunderlich, 776 S.W.2d at 957, and other
reported cases?
4. Does Estate of Brown, 402 S.W.3d 193 (Tenn. 2013), which does not discuss
revivor, did not have one of the parties die during the pendency of the action, and
had a holding limited to facts not at issue in this case, have any application to this
case?
5. Should the 12-month bar and revivor statute control over the 6-year contract statute
of limitations?
STANDARD OF REVIEW
The standard applicable to our review of a motion to dismiss based on lack of subject
matter jurisdiction is as follows:
A motion to dismiss for lack of subject matter jurisdiction falls under
Tennessee Rule of Civil Procedure 12.02(1). The concept of subject matter
jurisdiction involves a court’s lawful authority to adjudicate a controversy
brought before it. Subject matter jurisdiction involves the nature of the cause
of action and the relief sought and can only be conferred on a court by
constitutional or legislative act. Since a determination of whether subject
matter jurisdiction exists is a question of law, our standard of review is de
novo, without a presumption of correctness.
Northland Ins. Co. v. State, 33 S.W.3d 727, 729 (Tenn. 2000) (citing Nelson v. Wal–Mart
Stores, Inc., 8 S.W.3d 625, 628 (Tenn. 1999)).
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Similarly, our standard of review of legal issues, such as statutory interpretation, is
de novo. Moore v. Town of Collierville, 124 S.W.3d 93, 97 (Tenn. 2004) (citing Tucker v.
Foamex, LP, 31 S.W.3d 241, 242 (Tenn. 2000)).
ANALYSIS
I. REVIVOR STATUTE
The gravamen of this declaratory judgment action is a breach of contract claim.
Tennessee law allows for the survival of breach of contract actions when a party dies during
the litigation. The applicable statute reads “No civil action commenced, whether founded
on wrongs or contracts, except actions for wrongs affecting the character of the plaintiff,
shall abate by the death of either party, but may be revived[.]” Tenn. Code Ann. § 20-5-
102.
The process for reviving a claim is covered under § 30-2-320 (the “Revivor Statute”)
in the Tennessee Code:
All actions pending against any person at the time of that person’s death, that by
law may survive against the personal representative, shall be considered demands
legally filed against the estate at the time of the filing with the clerk of the court in
which the estate is being administered of a copy in duplicate of the order of revivor,
one (1) of which copies shall be certified or attested, a notation of which shall be
entered by the clerk in the record of claims, as in the case of other claims filed.
Pending actions not so revived against the personal representative within the period
prescribed in § 30-2-307(a) shall abate.
Tenn. Code. Ann. § 30-2-320.
The Revivor Statute was enacted into law in 1939 as a part of a larger package of
reforms governing proper administration of estates, sometimes referred to as “the Acts of
1939.” Cooper’s Estate v. Keathley, 177 S.W.2d 356, 358 (Tenn. Ct. App. 1943).
Commenting on revivor, the Tennessee Supreme Court wrote that “the language of the
1939 statute is sweeping” and “requir[es] prompt filing of claims against estates of
deceased persons.” Minton’s Estate v. Markham, 625 S.W.2d 260, 262–63 (Tenn. 1981).
Thus, revivor is necessary “in order to perfect the alleged cause of action as a legally filed
demand.” 2 Pritchard on the Law of Wills and Admin of Estates § 735 (2025). And one of
the requirements of revivor is that “a copy of the order of revivor or substitution of parties
must be filed in duplicate with the clerk of the court in which the estate is being
administered within the period prescribed by T.C.A. § 30-2-307(a). . . . Pending actions not
so revived against the personal representative within the statutory period will abate at the
end of that period.” Id.
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The Revivor Statute is in accord with Rule 25.01 of the Tennessee Code of Civil
Procedure, which covers substitution of parties. “Revivor of an action requires not only an
order for substitution pursuant to Tenn. R. Civ. P. 25.01, but also the filing of a copy of
that order with the clerk of the court in which the estate of the deceased party is being
administered.” 4 Nancy Fraas Mclean, Tenn. Prac. R. of Civ. Proc. Ann. § AC 25.5 (5th
ed. 2022).
Declaring the Revivor Statute to be “good, valid, and binding law in this state,” this
court stated that the proper procedure “requires first, entering an order of substitution of
parties and second, filing a copy of that order with the clerk of the court in which the estate
of the deceased party is being administered.” Mid-S. Pavers, 771 S.W.2d at 423.
Additional case law underscores the importance of the Revivor Statute’s two-step
process. In Windsor Hosiery Mills, the Supreme Court took up “whether in a case where
suit has been revived against a decedent estate within nine months after publication notice
to creditors a copy of the order of revivor must also be filed with the County Court Clerk
within that period.”2 437 S.W.2d at 249. The court held that two steps were needed to
preserve a claim: filing in the court where the action was pending and filing in the probate
proceeding. Id. at 250. And the failure to make one of the two required filings was fatal to
the plaintiff’s claims. Id.
Although revivor is well-established in our jurisprudence, “this area of the law is
fraught with confusion.” Mid-S. Pavers, 771 S.W.2d at 421. Exceptions to the statute’s
broad and inclusive language, applying its mandates to “all actions,” have been made for
actions including pending tort claims, non-compete actions, and specific performance.
Nonetheless, we reiterate that the Revivor Statute is “good, valid, and binding” law in cases
where a party dies during litigation. Id. at 423.
Recognizing that revivor is generally required in “all actions” in which the
defendant dies during litigation, subject to certain recognized exceptions, id., we will
examine Plaintiffs’ arguments that the Revivor Statute does not apply in this case.
A. Revivor Requirements and Exceptions
Plaintiffs argue that their complaint for a declaratory action is exempt from the
Revivor Statute because it does not seek monetary relief, but is instead an action for specific
performance, which is an exception to the Revivor Statute.
2
The legislature has changed the time limit in this statute over the years. At the time of the Windsor
ruling, the limit was nine months. Currently, it is one year. Tenn. Code Ann. § 30-2-307(a).
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Unlike contract actions for money damages, actions for specific performance are
not subject to the Revivor Statute. See Wright v. Universal Tire, Inc., 577 S.W.2d 194, 196
(Tenn. Ct. App. 1978). As Wright explains, the Revivor Statute “does not include an action
for specific performance but refers to debts or demands against the decedent
which might have been enforced by personal actions for the recovery of money.” Id.
Here, however, the complaint for declaratory judgment does not explicitly request
specific performance. Instead, it seeks a declaration that the Agreement is valid and that
the 2015 Will is subject to the Agreement. It also requests a full accounting of the estate
by Doris Etheredge.
Plaintiffs would also exempt their claim from the Revivor Statute because judicial
precedent in Tennessee holds that a breach of contract to create a will is enforced by
specific performance. Ashley v. Volz, 404 S.W.2d 239, 241 (1966). However, that is not
the relief sought in the complaint at bar. Instead, Plaintiffs seek a declaration pursuant to
the Declaratory Judgment Act (Tenn. Code Ann. §§ 29-14-101 to -113) that the Agreement
is valid and enforceable.
Section 102(a) of the Declaratory Judgment Act grants courts “the power to declare
rights, status, and other legal relations whether or not further relief is or could be claimed”
by issuing declaratory judgments. The Tennessee Supreme Court has held that “a complaint
for a declaratory judgment asks a court to ‘proclaim the rights of the litigants without
ordering execution or performance.’” Colonial Pipeline Co. v. Morgan, 263 S.W.3d 827,
837 (Tenn. 2008) (citing 26 C.J.S. Declaratory Judgments § 1 (2001)) (emphasis added).
Given the court’s clear and unambiguous language, holding that a declaratory judgment
does not order performance by the parties, Plaintiffs’ complaint for declaratory judgment
is distinguishable from a request for specific performance.
Additionally, this court’s decision in Wunderlich addresses whether a complaint
requesting a declaratory judgment is subject to the Revivor Statute. 776 S.W.2d at 956.
The plaintiff, Kent Wunderlich, brought a declaratory action against the defendant,
William Fortas, after he allegedly breached his agreement to assign all his assets, including
the Camelot Manor Apartments, to Mr. Wunderlich. Id. at 954. Instead of honoring the
agreement, Mr. Fortas transferred his interest in the apartments to his mother, Pauline
Fortas. Mr. Wunderlich sought a declaratory action that the transaction between Mr. Fortas
and his mother was void ab initio. While the proceedings were ongoing, Pauline Fortas
died. Her estate was substituted as a defendant in the case, but an order of revivor was not
filed. Consequently, Mr. Wunderlich’s case against the mother’s estate was declared
“forever barred” because he “failed to properly revive” his claim. Id. at 955.
We also acknowledge Plaintiffs’ attempt to distinguish this case from Wright
because the claims against the defendants in Wright were for monetary damages, “rents
and profits,” while Plaintiffs are not seeking monetary damages. As mentioned above,
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Wright held that the Revivor Statute applied to, inter alia, “debts or demands against the
decedent which might have been enforced by personal actions for the recovery of
money, upon which only a money judgment could have been rendered.” Wright, 577
S.W.2d at 196. We find Plaintiffs’ reliance on this quote misplaced because Wright does
not limit the Revivor Statute to claims for a money judgment. Moreover, Wright only
excludes specific performance from the revivor requirements, concluding that claims for
specific performance are better suited to be brought against the heirs acquiring property by
will. Id. Thus, Plaintiffs’ reliance on Wright is misplaced.
Furthermore, and more on point, Wunderlich, decided 10 years after Wright,
recognizes that declaratory judgments are subject to the Revivor Statute. While an award
of money may have been Mr. Wunderlich’s goal, the relief sought in the complaint was for
declaratory judgment, see Wunderlich, 776 S.W.2d at 954, to declare the respective rights
of the parties, just like Plaintiffs’ complaint in the case at bar. Wunderlich made it clear
that the plaintiff was seeking “only a declaration that defendant William Fortas had no
interest in the property to transfer and that plaintiff-assignee is ‘a substituted limited partner
admitted to all of the rights of William E. Fortas . . . in and to the Camelot Manor
Apartments.’” 776 S.W.2d at 956. Thus, the court held that “the plaintiff was required to
comply with [the Revivor Statute] T.C.A. 30-2-320.” Id.
Next, we look to the plain language of the statute, imposing revivor requirements
on “all actions pending against any person at the time of that person’s death, that by law
may survive against the personal representative.” Tenn. Code Ann. § 30-2-320. The phrase
“all actions” suggests that the law should be construed broadly, with the burden to show
an exception on the requestor. Had the legislature wished to reserve revivor for only money
judgments, they could have written the law more narrowly to achieve this result.
Notably, tort claims and non-compete agreement disputes are exempted from the
Revivor Statute. “Our courts have held in numerous cases that the [Revivor Statute] does
not apply to actions sounding in tort.” Estate of Patten v. Batchelor, 664 S.W.2d 698, 700
(Tenn. Ct. App. 1983) (citations omitted). Under the Revivor Statute, “a tort claimant is
not a creditor . . . until he has obtained a judgment. Tort claims are uncertain and unknown
until a pecuniary value is set by a court.” Wunderlich, 776 S.W.2d at 956 (citation
modified). A breach of a non-compete is exempted for the same reason, namely, that
damages are “generally uncertain, remote, and speculative.” Coin Automatic Co. v. Dixon’s
Estate, 375 S.W.2d 858, 861 (Tenn. 1963). Here, Plaintiffs’ claim is not a tort claim, nor
does it relate to non-competes. Moreover, the claim for declaratory judgment was not
general or speculative. Thus, it does not fall outside the revivor statute by reason of overly
speculative damages.
Finally, the Revivor Statute “must be read in light of the interpretative gloss given
the entire Act by prior decisions.” Estate of Patten v. Batchelor, 664 S.W.2d at 700.
Considering Wunderlich’s explicit inclusion of declaratory judgment actions, the plain
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language of the statute, and relevant cases’ explication of the issue, we conclude that
Plaintiffs’ claim for declaratory judgment does not fall under an exception to the Revivor
Statute.
B. The Existence of a Claim at Time of Death
Plaintiffs also argue that they were not required to file a revivor because they had
no claim against Doris Etheredge prior to her death, so there was effectively nothing to
revive. While their claim pertained to Nathan Etheredge’s will, Doris Etheredge is a
defendant in this action because she was a party to the Agreement that is at issue here.
Once again, Wunderlich is instructive. There, William Fortas was named as a defendant,
due to his alleged breach of his agreement to assign his assets to Kent Wunderlich.
Wunderlich, 776 S.W.2d at 954. But Mr. Fortas’s mother, Pauline Fortas, was also named
as a defendant, because Mr. Fortas assigned Camelot Manor apartments to her, rather than
Mr. Wunderlich. Id. As here, Ms. Fortas died during the litigation. Id. Wunderlich held that
an order of revivor was necessary against the estate of Ms. Fortas, and without the revivor,
the court was deprived of subject matter jurisdiction. Id. at 957.
Like Wunderlich, the claim asserted in Plaintiffs’ complaint was for declaratory
judgment. As in Wunderlich, like Ms. Fortas, Ms. Etheredge was a named defendant in the
declaratory judgment action when she died. Id. at 954. Based on these facts the Wunderlich
court ruled that revivor was required. Thus, here, Plaintiffs were required to revive their
claim against Ms. Etheredge.
II. SUBJECT MATTER JURISDICTION
In addition to barring untimely claims, the requirements of the Revivor Statute
implicate the court’s subject matter jurisdiction to hear the case. “Statutory enactment[s] .
. . denominated as a nonclaim or administrative statute for the orderly, expeditious, and
exact settlement of estates of decedents . . . are jurisdictional.” Alamo Dev. Corp. v.
Thomas, 212 S.W.2d 606, 607 (1948). “[The Revivor Statute] is a general statute of
limitations or ‘non-claim’ statute.3 Thus, its requirements are mandatory and
3
Holding Tennessee Code Annotated § 30-2-307 to be a nonclaim statute, Bowden v. Ward, 27
S.W.3d 913 (Tenn. 2000) concluded, “Statutory enactments barring claims which are filed against an estate
beyond a certain time period frequently are referred to as ‘nonclaim’ statutes.” American Jurisprudence,
2d, defines nonclaim statutes as follows:
A nonclaim statute is a self-contained statute that prohibits absolutely the initiation of
litigation after a specific period of time . . . . The purpose of nonclaim statutes is to impose
a condition precedent to the enforcement of the right of action for the benefit of the party
against whom the claim is made. Nonclaim statutes create an absolute bar to recovery or
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jurisdictional.” Wunderlich, 776 S.W.2d at 957 (citing Woods v. Palmer, 496 S.W.2d 474
(Tenn. 1973)). “Statutes of this kind are jurisdictional.” Windsor Hosiery Mills, 437
S.W.2d at 251. “To the extent that requirements of T.C.A. § 30-2-320 were jurisdictional
prior to adoption of the T. R. Civ. P., they are jurisdictional now.” Mid-S. Pavers, 771
S.W.2d at 423. The foregoing show that the Revivor Statute is both a statute of limitations
and a prerequisite for jurisdiction over the matter. Because precedent holds the Revivor
Statute to be jurisdictional, without a timely filed order of revivor, a court will lack subject
matter jurisdiction. Under Tennessee Code Annotated § 30-2-307, the jurisdictional time
limit to file the revivor in this case was one year from the date of Ms. Etheredge’s death,
which deadline passed before the estate of Ms. Etheredge filed its motion to dismiss for
lack of subject matter jurisdiction.
For completeness we note that Plaintiffs rely on Estate of Brown, 402 S.W.3d 193
(Tenn. 2013). While Brown comments on Tennessee Code Annotated § 30-2-307(a) and
its time limitation on claims filed after a decedent’s death, the Revivor Statute was not at
issue in Brown. Furthermore, the facts in Brown are distinct from the instant case;
significantly, no party died during the pendency of litigation in Brown.
Relying upon the reasoning in Windsor Hosiery Mills, Mid-S. Pavers, and
Wunderlich, we conclude that the Revivor Statute is jurisdictional. See Alamo Dev. Corp.,
212 S.W.2d at 607; Windsor Hosiery Mills, 437 S.W.2d at 251; Mid-S. Pavers, 771 S.W.2d
at 423; Wunderlich, 776 S.W.2d at 957.
III. DISMISSAL WITH PREJUDICE
The trial court dismissed Plaintiffs’ claims with prejudice because the action “was
not, and now cannot, be properly revived.” Because the failure to comply with the Revivor
Statute bars Plaintiffs from pursuing this action any further, which constitutes an
adjudication on the merits, we affirm the trial court’s decision to dismiss this action with
prejudice.
IN CONCLUSION
The judgment of the trial court is affirmed in all respects. Costs of appeal are
assessed against Plaintiffs/Appellants, Larry Etheredge, Dennis N. Etheredge, Evelyn
Charlotte Crane, Cinde Etheredge Lucas, and Tammy Etheredge.
destroy the claim for relief itself; therefore, noncompliance with nonclaim statutes deprives
a court of subject matter jurisdiction.
51 Am. Jur. 2d Limitation of Actions § 3 (2025).
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________________________________
FRANK G. CLEMENT JR., P.J., M.S.
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