Session November 21, 2016
from the Chancery Court for Jefferson County No. 12-CV-237
Douglas T. Jenkins, Chancellor
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. 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.
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.
R. Frierson, II, J., delivered the opinion of the court, in
which D. Michael Swiney, C.J., and Richard H. Dinkins, J.,
R. FRIERSON, II, JUDGE
Factual and Procedural Background
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." 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. In the 1950s, Mr. Swann
created a subdivision, now known as "Little Bonanza,
" with tracts of land adjacent to Douglas Lake.
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.
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
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.
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.
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." 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).
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.
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.
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
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.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."
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. Ms. Frinks timely appealed.
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.
Standard of Review
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).
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.
Affirmative Defense of Adverse Possession
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.
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 ...