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Logan v. The Estate of Mildred Cannon

Court of Appeals of Tennessee, Knoxville

December 27, 2019


          Session August 22, 2019

          Appeal from the Chancery Court for Bradley County No. 2011-CV-48 Frank V. Williams, III, Chancellor [1]

         Upon remand from this Court in a previous appeal, the trial court conducted a bench trial on a claim of common law adverse possession initiated by the plaintiff concerning a one-quarter ownership interest in an unimproved 7.18-acre tract of real property located in Bradley County, Tennessee. In its final order, the trial court dismissed the plaintiff's action in its entirety upon finding that although the plaintiff had presented evidence that preponderated in favor of adverse possession, the evidence did not rise to the level of the clear and convincing standard required to establish ownership through adverse possession. The plaintiff has appealed. Having determined that the plaintiff demonstrated adverse possession of the property interest at issue by clear and convincing evidence, we reverse.

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

          James F. Logan, Jr., Cleveland, Tennessee, Pro Se.

          Travis D. Henry, Cleveland, Tennessee, for the appellees, The Estate of Mildred Cannon by and through the Personal Representative, Janna Sullivan; Janna Cannon Sullivan, Individually; Janna Cannon Sullivan as Co-Trustee; and Comerica Bank, Successor Co-Trustee, per the Will of Sam Cannon.

          Thomas R. Frierson, II, J., delivered the opinion of the court, in which D. Michael Swiney, C.J., and John W. McClarty, J., joined.



         I. Factual and Procedural Background

         This case was previously before this Court on appeal in Logan v. Estate of Cannon, No. E2015-02254-COA-R3-CV, 2016 WL 5344526 (Tenn. Ct. App. Sept. 23, 2016) ("Logan I"). At issue is a one-quarter ownership interest ("Disputed Interest") claimed by the plaintiff, attorney James F. Logan, Jr., in an unimproved 7.18-acre tract of real property located at the intersection of Mouse Creek Valley Road and Lauderdale Highway in Bradley County, Tennessee ("the Property"). In Logan I, this Court affirmed the trial court's grant of summary judgment to the defendants on all claims except Mr. Logan's claim of common law adverse possession, determining that genuine issues of material fact existed concerning adverse possession and remanding the case for "further proceedings concerning this claim." Id. at *1.

         In Logan I, this Court set forth the factual and procedural background leading to the first appeal as follows:

Prior to the alleged April 1974 conveyance of a one-quarter interest in the Property ("Disputed Interest") from Sam and Mildred Cannon to Mr. Logan, the Property was owned in equal percentages by Mr. Cannon, James S. Thompson, Conrad Finnell, and C.W. Wright, Jr. At the time, Mr. Thompson, Mr. Finnell, and Mr. Logan were all partners in the law firm now known as Logan-Thompson, PC.
The chain of title reflects that on October 6, 1967, a conveyance of the Property via warranty deed from H. L. Hughes, Jr., et ux., in equal fourths to Mr. Cannon, Mr. Wright, and Joan W. Walker, with the remaining one-fourth divided equally between Mr. Thompson and Mr. Finnell, was recorded in the Bradley County Register's Office. Through various recorded conveyances of portions of interest in the Property, by April 1972, the Property was jointly owned by Mr. Wright, Mr. Thompson, Mr. Finnell, and Mr. Cannon as tenants in common. Mr. Cannon's interest was one-twelfth shy of a one-fourth interest in the Property. On December 22, 1972, Mr. Thompson and Mr. Finnell conveyed to Mr. Cannon by warranty deed a one-twelfth interest in the Property. However, this deed was not recorded until 1979 and, according to Mr. Thompson's affidavit, was believed lost. On March 16, 1974, Mr. Thompson and Mr. Finnell again conveyed by warranty deed the same one-twelfth interest in the Property to Mr. Cannon. This deed was recorded on March 21, 1974. It is undisputed that the recorded chain of title concerning the Disputed Interest ends with the 1979 recordation of the 1972 deed conveying to Mr. Cannon a one-twelfth interest in the Property.
Mr. Logan's claim rests on his assertion that in April 1974, Mr. Cannon was having financial problems, offered to sell Mr. Logan the Disputed Interest, and accepted a check written by Mr. Logan in the amount of $6, 400.00 as full payment. Mr. Logan acknowledges that the cancelled check has long since been lost or destroyed. Mr. Logan maintains that prior to purchasing the Disputed Interest, he confirmed with Mildred Cannon that she agreed to the sale. Mr. Logan testified through deposition that he believed Mr. Cannon was going to have Mr. Thompson draft a deed. According to Mr. Logan, he discovered there was no deed of record for his ownership of the Disputed Interest in 2006 or 2007 when he and other co-tenants were preparing to apply for permission to rezone the Property for development.
Meanwhile, Sam and Mildred Cannon were divorced in 1979. Two children, now adults, were born to the marriage: co-defendant Janna Cannon Sullivan and Phil Cannon. The divorce judgment and concomitant agreed property settlement, attached to pleadings in the record before us, provides for no distribution of the Disputed Interest. It is undisputed that upon Mr. Cannon's death in 2002, his estate was settled without reference to his purported interest in the Property.
On February 28, 2011, Mr. Logan, Mr. Thompson, and Jenny Rogers (collectively, "Plaintiffs") filed this action seeking declaratory judgment regarding ownership of the Disputed Interest and clear title in Mr. Logan's name to the Disputed Interest. Ms. [Jenny] Rogers is the daughter and successor in interest of Conrad Finnell, who had died on April 14, 2003. The plaintiffs named as defendants Mildred Cannon; Janna Cannon Sullivan, individually and as co-trustee of a trust for the benefit of Phil Cannon; and Comerica Bank, successor co-trustee pursuant to the will of Sam Cannon (collectively, "Defendants"). Mildred Cannon subsequently died during the pendency of this action on September 7, 2011. Thereafter, the Estate of Mildred Cannon, by and through Janna Cannon Sullivan as personal representative, was substituted for Mildred Cannon as Co-Defendant.
Although Plaintiffs averred in their complaint that Mr. Logan's purported purchase of the Disputed Interest should be upheld, they also claimed in the alternative that Mr. Logan had acquired the Disputed Interest via adverse possession. Plaintiffs sought to have the trial court (1) compel Defendants to execute a deed to replace the purportedly lost deed, (2) declare the purportedly lost deed valid, and (3) declare Mr. Logan the true owner of the Disputed Interest.
Defendants filed an answer on May 4, 2011, denying any knowledge of a conveyance of the Disputed Interest from Sam and Mildred Cannon to Mr. Logan and asserting, inter alia, the Statute of Frauds as an affirmative defense. See Tenn. Code Ann. § 29-2-101. On November 1, 2011, Defendants filed a motion for summary judgment, requesting dismissal of the complaint. In support, they attached a statement of material facts, a memorandum of law, a copy of Mr. Logan's response to the Defendants' first set of interrogatories, and a copy of Mr. Logan's deposition testimony. They subsequently filed affidavits completed respectively by Ms. Sullivan and the Bradley County Assessor of Property, who stated that Mr. Logan's name was not added to the tax assessment for the Property until 2009.
Plaintiffs subsequently filed their motion for summary judgment on June 22, 2012, asserting that Mr. Logan's 1974 purchase of the Disputed Interest was "undisputed" and that no genuine issue of material fact existed to prevent an award of summary judgment in favor of Plaintiffs. In support, they attached a statement of "undisputed" material facts and several affidavits attesting to Mr. Logan's purchase of the Disputed Interest, his payment of one-quarter of the property taxes on the Property since 1974, and/or his use of and control over the Property since April 1974. They also attached the affidavit of the Bradley County Trustee, who attested to tax records reflecting that Mr. Logan paid one-quarter of the property taxes related to the Property from 1996 through 2010. Plaintiffs subsequently filed a motion to amend the complaint to plead the equitable doctrines of constructive and/or resulting trust.
The trial court conducted a hearing on April 2, 2013. Finding that Plaintiffs had failed to satisfy the requirements of the Statute of Frauds or to prove that Mr. Logan's use of the Property constituted adverse possession, the court granted summary judgment in favor of Defendants and quieted title of the Disputed Interest in favor of Defendants. The court entered a final order to this effect on March 4, 2014, incorporating a memorandum opinion from the April 2, 2013 hearing. Mr. Logan timely appealed to this Court.
This Court remanded the case on March 24, 2014, however, requesting clarification concerning Mr. Logan's motion to amend his complaint and his claims of resulting trust and/or constructive trust. Following a hearing on remand, the trial court granted Mr. Logan's motion to amend his complaint but confirmed summary judgment in favor of Defendants, dismissing Mr. Logan's claims of resulting trust and constructive trust. The trial court entered a final judgment to this effect on October 28, 2015. Mr. Logan timely appealed.

Id. at *1-3 (footnotes omitted). Mr. Logan was the sole plaintiff to participate in the first appeal, id. at *1, and he is also the sole plaintiff to participate in the instant appeal. As in the first appeal, id. at *2, the defendants are the Estate of Mildred Cannon; Janna Cannon Sullivan, individually and as co-trustee of a trust for the benefit of Phil Cannon; and Comerica Bank, successor co-trustee pursuant to the will of Sam Cannon (collectively, "Defendants").

         In determining that summary judgment was not proper on the issue of common law adverse possession, this Court concluded that genuine issues of material fact existed concerning whether "Mr. Logan [had] maintained control of the Disputed Interest in the Property and, if so, whether Defendants had knowledge of his adverse possession or whether such adverse possession was so open and notorious in the community as to imply a presumption of that fact." Id. at *14. Noting the content of affidavits presented by Mr. Logan with his motion for summary judgment, this Court stated that "[t]he majority of Mr. Logan's potential witnesses thus submitted sworn statements that Mr. Logan was the individual whom people routinely contacted regarding information about or use of the Property, and they also maintained that he was generally known in the community to be the owner of the Disputed Interest." Id. at *11. Also noting conflicting affidavits concerning whether Mr. Logan had paid real property taxes on the Disputed Interest prior to 2009, this Court also concluded that "[a] genuine issue of material fact . . . exist[ed] regarding whether Mr. Logan demonstrated his intent to claim the Disputed Interest by paying property taxes on it from at least 1991, twenty years prior to filing the complaint." Id. at *14.

         Following remand, the trial court conducted a bench trial on July 19, 2018. Evidence presented by Mr. Logan included, in addition to various exhibits, his own testimony and testimony proffered by James S. Thompson (testifying telephonically), Mr. Logan's law partner and a tenant in common owning one-fourth interest in the Property; Arnold E. Botts, a former employee of Mr. Logan's law firm; H. L. Hughes, III, a farmer who had grazed cattle on the Property; and Cynthia A. Logan, Mr. Logan's wife. Presenting his own testimony on direct exam, Mr. Logan reiterated his account, as noted in Logan I, 2016 WL 5344526, at *2, of his purported 1974 payment to Sam Cannon of $6, 400.00 in exchange for the Disputed Interest and subsequent failure to obtain a deed documenting the conveyance, which he did not discover until 2006 or 2007.

         Mr. Logan stated that when he and Mr. Cannon were discussing the sale of the Disputed Interest, Mr. Cannon took Mr. Logan to the Property and "pointed out the fences which were there." Mr. Logan continued his testimony as follows in pertinent part:

Mr. Hughes and his son . . . were actually repairing a fence which was located along Mouse Creek Valley Road and for some reason the fencing needed repair. There was a fence which was somewhat dilapidated along the roadway on Mouse Creek Valley Road and along the roadway of Lauderdale Highway.
There was a lock on the gate which was located, my estimate is approximately 100 feet . . . . That fence had weak points in it and problems developed over the years.
We shook hands. I got a key to the lock on the gate. The only entrance way there was to the property at that time was through the property of Mr. Broaddus who was a gentleman from Georgia. I had spoken to him over the years. He passed away several years ago. I do not know the exact date. That property of Mr. Broaddus's was purchased by Mr. Robert Wright about seven years ago, eight years ago, maybe a little longer than that.
I exercised complete control over the use of that property since 1974. I pronounced openly to the entire world through the offices of the assessors of property, through the offices of the planning commission, through discussions with county commissioners, through discussions with the property owners of adjoining tracts of land who acknowledged my complete control of that property and the right of use of that property from and after 1974 . . . .
* * *
I stopped by the property. It is true it was not a daily occurrence but I drove past that property. On many occasions I would go Mouse Creek Valley Road or come back from Athens, Tennessee or otherwise and check on the property. There were numerous occasions in which I ascertained that the property was not secure and I would personally come back to the property or if I was attired appropriately I would secure the property.
I kept a hammer in the trunk of my vehicle, as I have in the trunk of my vehicle today a tool kit small as it is, and would repair the fencing or go to Mr. Hughes, H. L., III or H. L., Jr., and tell them for them to continue to use the property that they would have to abide their responsibility of keeping the property. They responded to my direction throughout the time period until Mr. [H. L.] Hughes [senior], passed away and then Hughesy [H. L. Hughes, III, ] moved.
After that occurred, as a part of all that . . . there was one time when there was a lock that I did not have the key to. I went -- my wife and I, the following day or two days following that, went up there and I bought bolt cutters and cut that lock, placed another lock to the key, to Mr. Hughes and retained a key for myself. There's not one time that I'm aware of that anybody ever failed to recognize my control over this property. Not once.
I did discuss it with the planning office. At that time the restrictions and state law regarding the placement of package liquor stores was controlled by populations of the municipality. I even discussed a bill to amend or modify that so that I could then use that property and discussed it with the city commissioner of the City of Charleston and the city manager of the City of Charleston to see if they would -- they wanted some revenue and they even considered it with reference to allowing it if they could qualify with the population level.
* * *
Robert Wright communicated with me and wanted to purchase this property. He did it through Mr. James S. Thompson who was representing him in a proceeding and he, Mr. Thompson, referred him to me to make those decisions. I told him that we were not in a position to sell the property at that time, that we anticipated substantial development.
We have kept a cooperating relationship because across the road there at the Wright Brothers Construction Company in order to develop a --I developed a plan to utilize how we could utilize this property commercially. It would require the construction of a deceleration lane on Mouse Creek Valley Road commencing at a point which would be north of the former gate.
Went over this plan both with the road department and with the planning office. It would require an acceleration lane to be constructed onto Lauderdale Highway if there were commercial development with an entrance way into the subject property. During the course of this time we've developed plans to land lease the property if we were able to do the development of this property.
** *
I have entertained and shown the property to various entities including the Pilot Oil Company land purchase officer and they looked at the property, chose not to make a formal offer for the property and purchased the property located at Exit 20 which is 13 miles, 15 miles south of this property on 1-75. There are other entities there with reference to that.
And all of those discussions have taken place solely and alone with me . . . .
Now, we have changed the entire fencing of this property. The difficulty of placing the fence is that it actually was located very close to, if not on the boundary, of the Mouse Creek Valley Road. That was moved back when I allowed Wright Brothers on behalf of myself and Mr. Wright, Mr. Robert Wright, who purchased the Broaddus property, and he asked me if he could continue to use the property as it had been used. He asked my permission because he knew I was in control of that property.
** *
We have taken the gate down which was located on Mouse Creek Valley Road, put up fencing and extended it and allowed the utilization of a gate to be placed which the corner closest to . . . Lauderdale Highway in which forms the property line between the Broaddus property purchased by Robert [Wright], allowed him to put the fence to that at that point. We took the gate out on Mouse Creek Valley Road and then placed the new gate. Mr. Wright actually placed that gate there.
** *
There are times over that period of time in which the fencing was covered in undergrowth. I would go by and get Mr. Hughes to clean it. There are times when I have actually cleaned the fence row myself. There are portions of the fence row.
I've shown the property and talked to approximately -- there are in excess of five but I cannot recall how many people. . . .
Though this property is farmland and has been utilized for that purpose no one was allowed on that property without ...

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