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Frinks v. Horvath

Court of Appeals of Tennessee, Knoxville

February 28, 2017

DONNA BABB FRINKS
v.
PATRICIA EILEEN HORVATH ET AL.

          Session November 21, 2016

         Appeal from the Chancery Court for Jefferson County No. 12-CV-237 Douglas T. Jenkins, Chancellor[1]

         This case involves alleged trespass via placement of a dock over lakefront real property that is beneath the lake's fluctuating water line several months of the year. Prior to congressional approval of construction for Douglas Dam in 1942, the property at issue was part of a 488-acre farm owned by the plaintiff's mother. In 1942, the Tennessee Valley Authority ("TVA") acquired a flowage easement with the right to flood up to contour line 1007 adjacent to what is now Douglas Lake. TVA subsequently paid $35, 628.50 to the plaintiff's mother to condemn the respective easement rights. In 1944, a third party purchased approximately 245 acres above contour line 1002, creating a subdivision in the 1950s with tracts of land adjacent to the lake. In 2006, the plaintiff learned that she had inherited from her mother title to real property below contour line 1002, located between "lakefront" tracts of land and the lake itself. Upon receipt of a November 2006 letter sent by the plaintiff's counsel to affected landowners, notifying them of the plaintiff's claim to the land upon or above which their docks were located, many of the landowners purportedly purchased title to the affected land from the plaintiff. However, the defendant landowner did not respond to the letter. On October 3, 2012, the plaintiff filed a complaint, alleging that the defendant was trespassing by virtue of a dock placed on property to which the plaintiff held title. The defendant had placed her dock immediately following the purchase of her tract in November 1992. The trial court subsequently consolidated this action with two similar lawsuits filed by the plaintiff against other landowners.[2] Following a bench trial, the trial court dismissed the complaint against this defendant upon finding that the defendant had established adverse possession of the property on which the defendant's dock sits when water levels are down and that the defendant's possession was continuous even when the dock was floating. The plaintiff timely appealed. Although we determine that the trial court erred in concluding that the defendant had established adverse possession for the twenty-year period required by common law, we further determine this error to be harmless because the defendant successfully established the seven-year period required for the statutory affirmative defense provided by Tennessee Code Annotated § 28-2-103. Discerning no reversible error, we affirm.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed; Case Remanded

          William S. Nunnally, Greeneville, Tennessee, for the appellant, Donna Babb Frinks.

          Patricia Eileen Horvath, Dandridge, Tennessee, Pro Se.

          Thomas R. Frierson, II, J., delivered the opinion of the court, in which D. Michael Swiney, C.J., and Richard H. Dinkins, J., joined.

          OPINION

          THOMAS R. FRIERSON, II, JUDGE

         I. Factual and Procedural Background

         The chain of title associated with the strip of lakefront real property at issue ("Disputed Property") is demonstrated by recorded deeds and testimony contained in the record and is not in dispute on appeal. The plaintiff's mother, Kathleen Babb, originally inherited a 488-acre farm located approximately at what is now Douglas Lake in Jefferson County, Tennessee, from her father, C.H. Cowan, who devised it to his daughter for life and then to her "bodily heirs."[3] C.H. Cowan died in 1929 when Kathleen Babb was eighteen years old. In 1942, when TVA obtained its flowage easement, Kathleen Babb was thirty-one years old. She had one child, Donna Babb, who was then five years of age and grew up to become the plaintiff, Donna Babb Frinks. Kathleen Babb subsequently died without any additional children. Prior to her death, Kathleen Babb retained ownership of the area below contour line 1002 of Douglas Lake, subject to TVA's flowage easement rights. In 1948, TVA paid $35, 628.50 to condemn Kathleen Babb's easement rights. In 1944, Alfred Swann purchased the approximately 245 acres above contour line 1002 for a price of $5, 000.[4] In the 1950s, Mr. Swann created a subdivision, now known as "Little Bonanza, " with tracts of land adjacent to Douglas Lake.

         Ms. Frinks acknowledged at trial that prior to 2006, she did not realize that she still owned the Property below contour line 1002, some of which adjoins parcels in the Little Bonanza subdivision and some of which adjoins parcels north of the subdivision. She had resided in Florida all of her adult life except for some summer vacations spent in a cabin she owned with her husband at Coker Creek in Monroe County, Tennessee. Ms. Frinks testified that in 2006, she received a telephone call from an individual she did not know who stated that he and his wife owned property within the Little Bonanza subdivision and had been attempting to discern who owned title to the property below contour line 1002. According to Ms. Frinks, the individual advised her that "[s]omeone is selling your property." She stated that the caller and his wife had traveled "to the courthouse and gone back to all of the records and discovered all of this." Ms. Frinks testified that when she examined relevant courthouse records, she decided that she could not "turn [her] back" on the "legacy" of the Cowan farm that had been devised to her. She then retained counsel.

         Ms. Frinks's counsel sent a letter, dated November 14, 2006, to all affected property owners, advising them that if they owned a dock over Ms. Frinks's property, they could qualify for a valid TVA permit for the dock by purchasing title to the affected property from Ms. Frinks. The letter stated in pertinent part:

Dear Property Owner:
This letter is being sent to you on behalf of Donna Babb Frinks because you have been identified as the owner of a lot or parcel of land on Douglas Lake which is either a lot in Little Bonanza Subdivision or a parcel to its north. You may own more than one lot. The purpose of this letter is to offer you an opportunity to purchase from Mrs. Frinks a portion of her property which lies between your tract and the water level of Douglas Lake, as it ebbs and flows.
Enclosed herein please find a copy of the relevant section of regulations relating to applications to place a dock on a reservoir maintained by the Tennessee Valley Authority. As you will see from the enclosure, TVA has the right to regulate the use of land and land rights subjacent to TVA reservoirs. If a facility is to be built on private land, the applicant must own the fee simple interest in the land or have a long term lease over the land in question. As you can see from the enclosed regulations, TVA recognizes that in some cases private property has been subdivided in a way that left an intervening strip of land between the upland boundary of the TVA flowage easement and the waters of the reservoir. The regulations provide that, in some situations, the owner of the intervening strip cannot be identified or does not object to the construction of facilities over the landowner's property. In such circumstances, TVA may exercise its discretion to permit a facility if there is no objection from the fee owner of the intervening strip. However, the applicant (lot owner) is responsible for insuring that there is no objection from any owner of such land.
***
Mrs. Frinks does object to the exercise of privileges over her property. However, she is willing to convey her interest to lakefront lot owners in order for the lot owners to solve their problems or potential problems with TVA.
***
The purpose of this letter is to communicate an offer that would permanently resolve this issue for the lakefront owners. It is not in the nature of a demand that you do anything. You may not need or want a dock. If you agree that it would be in your best interest to acquire the ownership of the land between your lot or lots and the actual water level, this letter is for the purpose of advising you that you now have that opportunity. The price that Mrs. Frinks is placing upon her land to convey her rights to lot owners is based upon the amount of lake frontage for each parcel. The average parcel in Little Bonanza fronts on the lake by approximately one hundred (100) feet. Her minimum price for the land adjacent to a lot is the sum of $5, 000.00. If, however, your lot contains more lakefront footage, the price would be higher. For example, if a property owner has three hundred (300) feet of lake frontage, the price would be $15, 000.00. Her price is $50.00 per foot. This offer will be good for the next sixty (60) days.
***
If you wish to take advantage of this opportunity, please contact the undersigned, preferably in writing, to express your willingness to do so and we will prepare the necessary deed and arrange for a date of mutual convenience for there to be an exchange of the deed for the purchase amount.

         Ms. Horvath's name, complete with her correct address, was listed by Ms. Frinks's counsel among the sixty-two recipients of the letter. Ms. Horvath testified at trial that she did not remember receiving the letter.

         On October 3, 2012, Ms. Frinks filed a complaint against Ms. Horvath, alleging trespass and requesting declaratory judgment quieting her title to the Disputed Property and a permanent injunction mandating Ms. Horvath "to remove any facility or improvements she had placed or constructed upon [Ms. Frinks's] property."[5] Ms. Frinks also requested damages for the value of the trespass, which she asserted amounted to not less than $3, 000.00 per year. She attached to the complaint copies of the relevant recorded deeds and an excerpt from "TVA Section 26A Regulations: Approval of Construction in the Tennessee River System and Regulation of Structures." In particular, Ms. Frinks relied on the following regulatory subsection regarding obtaining permission to build a facility on TVA land:

If the facility is to be built on TVA land, the applicant must, in addition to the other requirements of this part, own the fee interest in or have an adequate leasehold or easement interest of sufficient tenure to cover the normal useful life of the proposed facility in land immediately adjoining the TVA land. If the facility is to be built on private land, the applicant must own the fee interest in the land or have an adequate leasehold or easement interest in the property where the facility will be located. TVA recognizes, however, that in some cases private property has been subdivided in a way that left an intervening strip of land between the upland boundary of a TVA flowage easement and the waters of the reservoir, or did not convey to the adjoining landowner the land underlying the waters of the reservoir, or did not convey to the adjoining landowner the land underlying the waters of the reservoir. In some of these situations, the owner of the intervening strip or underlying land cannot be identified or does not object to construction of water-use facilities by the adjacent landowner. In these situations, TVA may exercise its discretion to permit the facility, provided there is no objection from the fee owner of the intervening strip or underlying land. A TVA permit conveys no property interest. The applicant is responsible for locating the proposed facility on qualifying land and ensuring that there is no objection from any owner of such land. TVA may require the applicant to provide appropriate verification of ownership and lack of objection, but TVA is not responsible for resolving ownership questions. In case of a dispute, TVA may require private parties requesting TVA action to grant or revoke a TVA permit to obtain a court order declaring respective land rights. TVA may exercise its discretion to permit a facility on TVA land that is located up or downstream from the land which makes the applicant eligible for consideration to receive a permit.

18 C.F.R. § 1304.2(a) (2003).

         Ms. Horvath, acting without benefit of counsel, filed an answer on December 3, 2012. She admitted to matters of public record, including the description in the complaint of the recorded deed to her 5.9-acre property at Douglas Lake. Ms. Horvath denied the allegation of trespassing. Regarding the placement of her dock and lack of consent from Ms. Frinks, Ms. Horvath stated:

[Ms. Horvath] admits she maintains a dock upon Douglas Lake immediately adjacent to her residence. The remaining allegations in said paragraph are admitted in that [Ms. Horvath] has never known and still does not know [Ms. Frinks's] consent or permission was necessary for the placement of the dock.

         Although Ms. Horvath averred in her answer that this action was "time barred by the doctrine of laches and/or the applicable statute of limitations, " she did not state that she was asserting an affirmative defense of adverse possession. She also did not file a counterclaim.

         In the meantime, the trial court entered an order on October 18, 2013, consolidating this action with similar lawsuits filed by Ms. Frinks against landowners: styled, respectively, Donna (Babb) Frinks v. Garland E. Layman et al. and Donna (Babb) Frinks v. Sarah L. Collier [Parker], and Woodrow Sanford and wife Darlene Sanford. In the consolidation order, the trial court continued the action styled Frinks v. Layman, and the record contains no further indication of proceedings in that action. Following entry of the consolidation order, Chancellor Telford E. Fogerty, Jr., who had initially presided over the instant action, recused himself by order entered December 15, 2014, from this action, the actions against Ms. Collier and the Sanfords, and an action styled Donna (Babb) Frinks v. Donald L. Kivett et al. On September 6, 2015, our Supreme Court appointed Chancellor Douglas T. Jenkins to hear by interchange the consolidated actions against Ms. Horvath, Ms. Collier, the Sanfords, and Mr. Kivett.

         The trial court conducted a bench trial on November 6, 2015. Ms. Horvath and Ms. Collier each respectively appeared at trial and testified without benefit of counsel.[6]Ms. Frinks also testified. Regarding the placement of her dock, Ms. Horvath testified that she acquired title to her Douglas Lake property on November 14, 1992, and installed the dock right away. She stated that typically, when the water level was low enough that the dock was not floating, approximately four months per year, the dock rested on the side of a steep slope. Ms. Horvath stated that she had always believed that TVA owned and controlled the property between her boundary line and the lake. She acknowledged that she had never sought a permit from TVA to install the dock at issue. According to Ms. Horvath, she installed a larger dock at some point in the five or ten years prior to trial. When questioned regarding whether a period of time elapsed between removal of the old dock and installment of the larger one, Ms. Horvath stated: "Not really. It was basically just put a bigger one in there." When pressed by Ms. Frinks's counsel as to whether it "[c]ould have been a few days" that went by while she was replacing the dock, Ms. Horvath acknowledged that "[i]t could have."

         In a judgment entered April 6, 2016, the trial court dismissed Ms. Frinks's complaint upon finding that although Ms. Frinks held title to the Disputed Property, Ms. Horvath had established adverse possession of the portion on which her dock sat when water levels were down and over which her dock floated when levels were high. Pursuant to Tennessee Rule of Civil Procedure 54.02, the court certified the April 6, 2016 judgment as final in the action against Ms. Horvath.[7] Ms. Frinks timely appealed.

         II. Issues Presented

         Ms. Frinks presents three issues on appeal, which we have restated as follows:

1. Whether the trial court erred by allowing Ms. Horvath to raise the affirmative defense of adverse possession during trial when she previously had not pled adverse possession.
2. Whether the trial court erred by finding that Ms. Horvath had established adverse possession.
3. Whether the trial court erred by declining to order removal of Ms. Horvath's allegedly trespassing dock.

         III. Standard of Review

         Our review of the trial court's judgment following a non-jury trial is de novo upon the record, with a presumption of correctness as to the trial court's findings of fact unless the preponderance of the evidence is otherwise. See Tenn. R. App. P. 13(d); Rogers v. Louisville Land Co., 367 S.W.3d 196, 204 (Tenn. 2012). "In order for the evidence to preponderate against the trial court's findings of fact, the evidence must support another finding of fact with greater convincing effect." Wood v. Starko, 197 S.W.3d 255, 257 (Tenn. Ct. App. 2006) (citing Rawlings v. John Hancock Mut. Life Ins. Co., 78 S.W.3d 291, 296 (Tenn. Ct. App. 2001)). The trial court's determinations regarding witness credibility are entitled to great weight on appeal and shall not be disturbed absent clear and convincing evidence to the contrary. See Jones v. Garrett, 92 S.W.3d 835, 838 (Tenn. 2002). We review the trial court's conclusions of law de novo with no presumption of correctness. Hughes v. Metro. Gov't of Nashville & Davidson County, 340 S.W.3d 352, 360 (Tenn. 2011).

         In reviewing pleadings, we "must give effect to the substance, rather than the form or terminology of a pleading." Stewart v. Schofield, 368 S.W.3d 457, 463 (Tenn. 2012) (citing Abshure v. Methodist Healthcare-Memphis Hosp., 325 S.W.3d 98, 104 (Tenn. 2010)). We note also that pleadings "prepared by pro se litigants untrained in the law should be measured by less stringent standards than those applied to pleadings prepared by lawyers." Stewart, 368 S.W.3d at 463 (citing Carter v. Bell, 279 S.W.3d 560, 568 (Tenn. 2009); Hessmer v. Hessmer, 138 S.W.3d 901, 903 (Tenn. Ct. App. 2003); Young v. Barrow, 130 S.W.3d 59, 63 (Tenn. Ct. App. 2003)). Parties proceeding without benefit of counsel are "entitled to fair and equal treatment by the courts, " but we "must not excuse pro se litigants from complying with the same substantive and procedural rules that represented parties are expected to observe." Hessmer v. Hessmer, 138 S.W.3d 901, 903 (Tenn. Ct. App. 2003).

         IV. Affirmative Defense of Adverse Possession

         In contending that the trial court erred by finding that Ms. Horvath had established the affirmative defense of adverse possession, Ms. Frinks specifically argues that (1) Ms. Horvath should not have been allowed to argue adverse possession at trial because she had not pled it beforehand, (2) Ms. Horvath had not maintained her dock on the disputed property for the full twenty years required for common law adverse possession by the time of the complaint's filing, (3) Ms. Horvath had not possessed the disputed property under the color of title required for adverse possession pursuant to Tennessee Code Annotated § 28-2-102 (2000), (4) Ms. Frinks had no knowledge of her ownership of the Disputed Property until 2006 and no knowledge of Ms. Horvath's dock until she subsequently viewed an aerial photograph, and (5) Ms. Horvath's possession was not continuous and uninterrupted. Upon our careful review, we determine that the trial court did not err by considering the affirmative defense of adverse possession because the parties tried the defense by implied consent. We further determine that although the trial court erred in finding that Ms. Horvath had adversely possessed the area of land under her dock for a full twenty years prior to commencement of this action, the error was harmless because Ms. Horvath did establish the seven-year period necessary for the statutory defense provided, regardless of color of title, by Tennessee Code Annotated § 28-2-103 (2000). We will address each of Ms. Frinks's arguments in turn.

         Acquisition of property by adverse possession may operate as a bar to recovery of the property by the title holder, and it may also operate to vest the adverse possessor with title. See Cumulus Broad., Inc. v. Shim, 226 S.W.3d 366, 375 (Tenn. 2007); Wilson v. Price, 195 S.W.3d 661, 666-67 (Tenn. Ct. App. 2005). As our Supreme Court has explained regarding common law adverse possession:

In our state, common law adverse possession rests upon the proposition "that, where one has remained in uninterrupted and continuous possession of land for 20 years, a grant or deed will be presumed." Color (or assurance) of title is not required. In order to establish adverse possession under this theory, or in any statutorily based claim, the possession must have been exclusive, actual, adverse, continuous, open, and notorious for the requisite period of time. Adverse possession is, of course, a question of fact. The burden of proof is on the individual claiming ownership by adverse possession and the quality of evidence must be clear and convincing. The actual owner must either have knowledge of the adverse possession, or the possession must be so open and notorious to imply a knowledge of the adverse possession, or the possession must be so open ...

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