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Franklin Square Towne Homeowners Association Inc. v. Kyles

Court of Appeals of Tennessee, Jackson

May 10, 2017


          April 4, 2017 Session [1]

         Appeal from the Chancery Court for Shelby County No. CH-11-0838 Walter L. Evans, Judge

         This 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.

         Tenn. 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.

          Edward M. Bearman and Gary E. Veazey, Memphis, Tennessee, for the appellees, Joseph B. Kyles, and Ava A. Kyles.

          J. Steven Stafford, P.J., W.S., delivered the opinion of the court, in which Brandon O. Gibson, J. and Jeffrey Parham, Sp. J., joined.




         This 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.

         On May 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.

         The 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.

         Property 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[2] 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.

         Other 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.

         The 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.[3] At the conclusion of Mr. Astin's testimony, Appellees conceded that the driveway was constructed partially on the Association's property.

         Adam 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 driveway.

         At 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.

         Mr. 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.

         Mr. 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.

         In 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.

         On 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.

         The 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 ...

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