FRANKLIN SQUARE TOWNE HOMEOWNERS ASSOCIATION INC., ET AL.
JOSEPH B. KYLES, ET AL.
4, 2017 Session 
from the Chancery Court for Shelby County No. CH-11-0838
Walter L. Evans, Judge
case involves a dispute over property. The trial court ruled
that the defendants' driveway and air conditioner pads
encroached onto the plaintiffs' property but declined to
order their removal. Rather, the trial court awarded the
plaintiffs damages and ruled that the encroachments could
remain in place. Both parties appealed. We affirm the trial
court's conclusion that plaintiffs' action with
regard to the driveway is not barred by the Tennessee Code
Annotated section 28-2-103 statute of limitations. We reverse
the trial court's ruling, however, to note that any
action regarding the air conditioners and their placement is
barred by the section 28-2-103 statute of limitations. We
also reverse the trial court's ruling allowing the
driveway to remain in place.
R. App. P. 3 Appeal as of Right; Judgment of the Chancery
Court Affirmed in Part and Reversed in Part
Michael C. Patton and Kavita G. Shelat, Memphis, Tennessee,
for the appellants, Franklin Square Towne Homeowners
Association, Inc., C. V. Scarborough, Jr., Natasha N. Adams,
Andy Steve Gilliam, and Janice A. Gilliam.
M. Bearman and Gary E. Veazey, Memphis, Tennessee, for the
appellees, Joseph B. Kyles, and Ava A. Kyles.
Steven Stafford, P.J., W.S., delivered the opinion of the
court, in which Brandon O. Gibson, J. and Jeffrey Parham, Sp.
STEVEN STAFFORD, JUDGE.
case involves the proper remedy for an encroaching driveway.
On or about June 24, 2010, Defendants/Appellees Joseph B.
Kyles and Ava B. Kyles ("Appellees") began
construction on a driveway to their residence on the eastern
side. Appellees' property abuts the property of the
Franklin Square Towne Homeowners Association, Inc. ("the
Association"), which is the homeowner's association
of the townhomes neighboring Appellees' home. Owners of
the neighboring townhomes, who were members of the
Association (collectively, "Property Owners"),
observed the construction and therefore reviewed documents to
determine whether the construction was properly on
Appellees' property. After reviewing the documents,
Property Owners informed Mr. Kyle on more than one occasion
of their belief that the driveway was being constructed on
the Association's property. Mr. Kyle, however, rebuffed
the Property Owners' concerns and continued with the
construction of the driveway. During this time, letters were
delivered to both Appellees and their attorneys concerning
the encroachment. Work on the driveway continued after the
delivery of the letters, however. The driveway was completed
on June 30 or July 1, 2010.
17, 2011, the Association and Property Owners C.V.
Scarborough, Natasha N. Adams, Steve Gilliam, and Janice A.
Gilliam (together with the Association,
"Appellants") filed suit against Appellees, seeking
an injunction, the removal of the offending driveway,
compensatory damages, and punitive damages. Appellees
answered the complaint and raised the affirmative defense of
adverse possession. Appellees also filed a counter-claim for
adverse possession. The parties participated in mediation,
which was unsuccessful.
trial court held a bench trial on December 7, 2015, and
February 2, 2016. At trial for the first time, Appellees
conceded that a portion of their driveway and air
conditioning pads encroached onto the Association's
property. Accordingly, we will only discuss the testimony
that is relevant to this appeal.
Owner Natasha Adams testified that she was the first among
the Property Owners to notice the construction of the
driveway. After learning of the construction, she and other
Property Owners, Thomas Taylor and Steve Gilliam reviewed the
plat for their townhomes and determined that the driveway was
encroaching onto the Association's property. According to
Ms. Adams, the Property Owners confronted Mr. Kyle with the
plat and notified him that the driveway was encroaching onto
the Association's property. Ms. Adams testified that Mr.
Kyle responded that his documents indicated that he owned the
disputed area. Although Property Owners requested that Mr.
Kyle stop construction, construction continued unabated. As a
result of the construction, Ms. Adams testified that the
construction crew excavated the area for a driveway pad, as
well as cut down and removed two mature crepe myrtles, two
juniper bushes, three azalea bushes, and one dogwood tree.
Ms. Adams testified that she believed the value of her
townhome had decreased by approximately $10, 000.00 to $12,
000.00 due to the changes to the property. Ms. Adams noted
that other units had also been affected. Ms. Adams explained
that she reached the above figure by taking into account that
loss of greenery and foliage and the loss of seclusion.
witnesses on behalf of Appellants likewise testified that
they repeatedly approached Mr. Kyle to inform him that the
driveway was being constructed on the Association's
property. According to these witnesses, however, Mr. Kyle
refused to suspend construction and requested that the
parties' attorneys handle the matter. Mr. Gilliam further
testified that his property was impacted by the encroachment
in that allowing the driveway to remain on his property
"creates a serious issue" in the event that he
wishes to sell his property or to make improvements that
might impact the utility lines to Appellants' properties
that are under the driveway. Mr. Gilliam further testified
that the removal of the greenery resulted in a loss of
privacy for Appellants, which could lead to security issues.
surveyor who performed a survey in 2010, Larry Astin,
testified regarding his findings. According to the survey, a
portion of the driveway, as well as the air conditioner pads
for Appellees' home, encroached onto the
Association's property. At the conclusion of Mr.
Astin's testimony, Appellees conceded that the driveway
was constructed partially on the Association's property.
Cartwright, the co-owner of a landscaping and concrete
business testified that Appellants had asked him to prepare
an estimate of the cost to remove the driveway and replace
the greenery in the disputed area. According to Mr.
Cartwright, the estimate included costs to excavate the
driveway, for traffic control, to "haul off the
concrete, " to fill the area with soil, to brick out
some areas as necessary, to replace the curb, to sod, and to
replace juniper bushes, crepe myrtles, azaleas, and a
dogwood. According to Mr. Cartwright, the estimated total
cost of the project was $10, 600.00. On cross-examination,
Mr. Cartwright admitted that his estimate would be lower if
he used smaller shrubs. Mr. Cartwright explained, however,
that the shrubs had been removed by the time he performed his
estimate, so he determined the proper size "best [he
could] tell" based on the size and maturity of other
plants in the neighborhood. Finally, Mr. Cartwright explained
that, in order to do the work for which he provided the
estimate, his workers "would need to be all over that
driveway." Indeed, Mr. Cartwright indicated that his
estimate involved removal of the entire driveway, rather than
merely the encroaching area, as the cost could "even go
up potentially, having to cut the concrete. [In order to]
[r]emove only a portion without damaging the other portion,
[it] might have to be taken out by hand as opposed to with
machinery, so that could make things much more
complicated." Mr. Cartwright noted, however, that he had
not done the calculations for removing only a portion of the
close of Appellants' proof, Appellees moved for dismissal
on the basis of the expiration of the statute of limitations
under Tennessee Code Annotated section 28-2-103. The trial
court orally denied the motion. Mr. Kyle was the only witness
to testify on behalf of Appellees. Mr. Kyle conceded the
accuracy of the survey but contended that he had a good faith
belief that he owned the property due to years of use of the
property, the location of his air conditioners at the time of
his purchase of the property, and statements from his realtor
when he purchased the property in 2001. Mr. Kyle noted that
the air conditioners and their pads had been in the same
place at the time of his purchase of the property. According
to Mr. Kyle, he and he alone had mowed and maintained the
greenery in the disputed area, at considerable expense. Mr.
Kyle noted that he did not reside in the home full-time until
approximately six years after its purchase. Mr. Kyle
maintained, however, that his lawn service performed the only
maintenance on that portion of the property during this time.
Kyle admitted that Property Owners had approached him
multiple times during the construction of the driveway with
their concerns about the fact that the driveway encroached on
the Association's property. According to Mr. Kyle,
however, he never suspended construction because he believed
that the disputed area belonged to him. Mr. Kyle also
admitted that he first suggested that lawyers become involved
in the dispute. According to Mr. Kyle, this statement came
after the discussion became heated and because issues had
previously arisen between his family and one Property Owner
over an unrelated matter.
Kyle explained that the purpose of the driveway was to
provide security and convenience for his family. Mr.
Kyle's wife suffers from Sickle Cell Anemia and uses a
cane for support. According to Mr. Kyle, the new driveway was
much closer to the front door of the home, allowing his wife
much easier access. Mr. Kyle admitted, however, that another
driveway was on the property that allowed access to his home.
rebuttal, Appellees called Reverend C.V. Scarborough, a
Property Owner. Reverend Scarborough testified that he
purchased his townhome in 1987. At the time, only one air
conditioner was attached to the property later purchased by
Appellees; Reverend Scarborough, however, could not state
when the second air conditioner was added. According to
Reverend Scarborough, both he and Mr. Gilliam mowed and
maintained the disputed areas over the years. Reverend
Scarborough indicated that this maintenance continued
"in the last few years, " i.e., after
Appellees' purchase of the neighboring property. Reverend
Scarborough testified that he took care of the trees and
bushes "as much as they were taken care of, "
tended to the juniper bushes, and mowed back around
Appellees' air conditioners.
August 29, 2016, the trial court entered an order containing
findings of fact and conclusions of law. The trial court
first confirmed that a portion of the disputed driveway was
constructed on the Association's property, conforming to
the survey introduced at trial. The trial court also rejected
Appellees' argument regarding the expiration of the
Tennessee Code Annotated section 28-2-103 statute of
limitations as "unpersuasive." The trial court
therefore ruled that Appellees' encroachment onto the
Association's property by way of both the driveway and
concrete pads on which air conditioning compressors sit
constitute an intentional trespass.
trial court ruled that to allow Appellants to remove the
driveway would entail a "substantial" cost and
"w[ould] diminish the value of both parcels of land to
the extent that the driveway encroachment shall remain."
The trial court found, however, that the encroaching driveway
did not diminish the use of Appellants' properties. The
trial court therefore ruled that Appellees would pay $10,
000.00 "for the encroachment, " while receiving a
perpetual easement for the encroachment to remain.
Additionally, the trial court awarded ...