Donna Babb Frinks v. Patricia Eileen Horvath ( 2017 )

02/28/2017
IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
November 21, 2016 Session
DONNA BABB FRINKS v. PATRICIA EILEEN HORVATH ET AL.
Appeal from the Chancery Court for Jefferson County
No. 12-CV-237 Douglas T. Jenkins, Chancellor1
No. E2016-00944-COA-R3-CV
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
1
Sitting by interchange.
2
Neither of the other two lawsuits is at issue in this appeal.
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
THOMAS R. FRIERSON, II, J., delivered the opinion of the court, in which D. MICHAEL
SWINEY, C.J., and RICHARD H. DINKINS, J., joined.
William S. Nunnally, Greeneville, Tennessee, for the appellant, Donna Babb Frinks.
Patricia Eileen Horvath, Dandridge, Tennessee, Pro Se.
OPINION
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.
3
Mr. Cowan also devised a separate, nearby farm property to his son, Robert Cowan.
4
In testimony and on appeal, Ms. Frinks has referred to Mr. Swann’s acquisition of “240” acres;
however, the 1944 deed granting him title reflects a property description of “245 acres, more or less,”
lying above contour line 1002. This distinction has no effect on Ms. Frinks’s title at issue.
2
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
3
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.
4
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
5
In the instant complaint, Ms. Frinks also named as defendants, respectively, separate landowners Lisa
Mims Cope and Gladys M. Roach. During trial in this matter, Ms. Frinks’s counsel announced that the
action against Ms. Cope had been settled. The record contains no indication of the disposition of the
action against Ms. Roach.
5
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.
6
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.
6
The trial court also addressed Ms. Frinks’s actions against the Sanfords and Mr. Kivett, ruling that Ms.
Frinks was entitled to a default judgment against Mr. Kivett and continuing the Sanfords’ case upon
finding that the Sanfords had transferred ownership of their affected parcel to their son, whom the court
added as a party defendant.
7
The record in this matter also contains a “Final Judgment,” entered April 27, 2016, in which the trial
court declared Ms. Frinks the owner of the property on which Ms. Collier testified that she had placed a
dock in 2011. The court ordered Ms. Collier to remove her dock from Ms. Frinks’s property.
7
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
8
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
and notorious to imply a presumption of that fact. When an adverse
possessor holds the land for a period of twenty years, even absent any
assurance or color of title, the title vests in that possessor.
Cumulus, 226 S.W.3d at 376-77 (internal citations omitted). Our Supreme Court has
elucidated the statutory forms of adverse possession as follows in pertinent part:
[L]imitations of real property actions, i.e., the statutory forms of adverse
possession, are found in Tennessee Code Annotated sections 28-2-101
through 103. Initially, land granted by the state, for example, requires only
9
a period of seven years’ adverse possession under a recorded assurance or
color of title, terms which are used interchangeably. Tenn. Code Ann. §
28-2-101 (2000); see, e.g., Slatton v. Tenn. Coal, Iron, & R.R. Co., 109
Tenn. 415, 75 S.W. 926, 927 (Tenn. 1902). Another provision, Tennessee
Code Annotated section 28-2-105, does not require any proof of a state land
grant but does prescribe assurance of title for thirty years and a minimum of
seven years of adverse possession. The limitations on actions statutes,
described in Tennessee Code Annotated sections 28-2-102 and 103, are
defensive only, barring only the remedy. Kittel v. Steger, 121 Tenn. 400,
117 S.W. 500, 503 (Tenn. 1909). These rights may be utilized by the
adverse holder only in the defense of a suit and not as a means to bar use by
the rightful owner. Slavely v. Bridges, 57 Tenn. App. 372, 418 S.W.2d 472,
479 (Tenn. Ct. App. 1967). Tennessee Code Annotated section 28-2-102
provides a defense when there is assurance of title and seven years
possession; this statute serves as protection as to the entire boundary as
described. Section 28-2-103, which does not involve color of title, protects
an adverse holder after a period of seven years but only as to that portion of
the land in his actual possession. Shearer v. Vandergriff, 661 S.W.2d 680,
682 (Tenn. 1983).
Cumulus, 226 S.W.3d at 376 (footnote omitted).
A. Affirmative Defense Tried by Implied Consent
Ms. Frinks argues that the trial court erred by allowing Ms. Horvath to raise the
affirmative defense of adverse possession for the first time during her opening statement
at trial. Ms. Frinks asserts that, pursuant to Tennessee Rule of Civil Procedure 8.03, Ms.
Horvath waived the defense of adverse possession by failing to raise it in prior pleadings.
Although Ms. Horvath maintains on appeal that she “did claim Adverse Possession,” she
does not dispute that she failed to include adverse possession as an affirmative defense in
her answer to the complaint. It is also clear from the record that Ms. Horvath did not
assert a counterclaim at any time. Upon our thorough review of the record, however, we
determine that the parties tried by implied consent, as an issue, the affirmative defense of
adverse possession.
Tennessee Rule of Civil Procedure 8.03 provides:
In pleading to a preceding pleading, a party shall set forth affirmatively
facts in short and plain terms relied upon to constitute accord and
satisfaction, arbitration and award, express assumption of risk, comparative
fault (including the identity or description of any other alleged tortfeasors),
10
discharge in bankruptcy, duress, estoppel, failure of consideration, fraud,
illegality, laches, license, payment, release, res judicata, statute of frauds,
statute of limitations, statute of repose, waiver, workers’ compensation
immunity, and any other matter constituting an affirmative defense. When
a party has mistakenly designated a defense as a counterclaim or a
counterclaim as a defense, the court, if justice so requires, shall treat the
pleading as if there had been a proper designation.
We note that although common law adverse possession may be invoked either
offensively or defensively, the statutory forms of adverse possession may be invoked
solely as affirmative defenses. See Cumulus, 226 S.W.3d at 376-77; see, e.g., Brewer v.
Piggee, No. W2006-01788-COA-R3-CV, No. 2007 WL 1946632, at *7-9 (reversing the
trial court’s grant of the plaintiff’s motion for judgment on the pleadings in part because
the trial court had failed to address the defendant’s “affirmative defense” of adverse
possession pursuant to Tenn. Code Ann. § 28-2-102).
Tennessee Rule of Civil Procedure 15.02 creates an exception to the general rule
that “[j]udgments awarded beyond the scope of the pleadings are void.” See Randolph v.
Meduri, 416 S.W.3d 378, 384 (Tenn. Ct. App. 2011). Rule 15.02 provides in pertinent
part:
15.02. Amendments to Conform to the Evidence.—When issues not raised
by the pleadings are tried by express or implied consent of the parties, they
shall be treated in all respects as if they had been raised in the pleadings.
Such amendment of the pleadings as may be necessary to cause them to
conform to the evidence and to raise these issues may be made upon motion
of any party at any time, even after judgment; but failure so to amend does
not affect the result of the trial of these issues.
“‘Generally speaking, trial by implied consent will be found where the party opposed to
the amendment knew or should reasonably have known of the evidence relating to the
new issue, did not object to this evidence, and was not prejudiced thereby.’” Hiller v.
Hailey, 915 S.W.2d 800, 804 (Tenn. Ct. App. 1995), perm. app. denied (Tenn. Dec. 18,
1995) (quoting Zack Cheek Builders v. McLeod, 597 S.W.2d 888, 890-91 (Tenn. 1980)).
As this Court has explained, “‘[t]rial by implied consent is not shown by the presentation
of evidence that is relevant to an unestablished issue when that evidence is also relevant
to the established issue.’” Christmas Lumber Co., Inc. v.. Valiga, 99 S.W.3d 585, 593
(Tenn. Ct. App. 2002) (quoting McLemore v. Powell, 968 S.W.2d 799, 803 (Tenn. Ct.
App. 1997)). “The determination of whether there was implied consent rests in the
discretion of the trial judge, whose determination can be reversed only upon a finding of
abuse.” Zack Cheek Builders, Inc. v. McLeod, 597 S.W.2d 888, 891 (Tenn. 1980).
11
At trial, the parties were sworn in as witnesses following an opening statement
delivered by Ms. Frinks’s counsel. The trial court then asked Ms. Horvath to explain in
what ways she disagreed with Ms. Frinks’s counsel’s statement. As Ms. Horvath
explained her position, the trial court questioned her by way of eliciting testimony from
her prior to cross-examination. During the court’s questioning, the following exchange
ensued:
The Court: [A]re you telling me that you have just always
freely gone to and from the edge of the water
since [19]92; is that what you are telling me?
Mr. Horvath: Yes, because I thought TVA owned all that
down in there. See, what it is, there is a bank.
My dock sits on the bank, a steep bank. It goes
into a creek bed. I mean, I do not have no
beach property out from my house or anything.
I am on a bank. The dock sits on a bank and the
bank goes into a creek bed. I mean, we are up
in a hollow. I mean, it is – there is just a narrow
strip there going up in there.
The Court: Are you telling me under oath that each and
every moment and second of time since 1992
that you had a dock where your dock presently
is?
Ms. Horvath: Yes, and I was told that I could get reverse
possession since I had had it there for so long.
The Court: Do you know of any defense under the law that
would reverse possession?
Ms. Frinks’s Counsel: I will read directly from the Cumulus
Broadcasting case, Supreme Court of
Tennessee.
The Court: What did it say?
Ms. Frinks’s Counsel: [“]In order to establish prescriptive easement
under the common law of this state, the usage
12
must be adverse under claim of right,
continuous, uninterrupted, open, visible,
exclusive and with the knowledge and
acquiescence of the owner servient tenement.”
That is her problem. Mrs. Frinks was in Florida
and didn’t know until 2006 that anybody, you
know, was trespassing on her.
Ms. Horvath: But that was there all the time.
The Court: Was that with or without color of title?
Ms. Frinks’s Counsel: Well, I guess it really wouldn’t matter, but she
would not have had color of title beyond the
1002 contour, which is where her deed goes to,
so she has no color of title. Beyond the area
where her dock is is an area where she has
never owned.
The Court: Does she – so what is her time period, seven, 20
or 30 years?
Ms. Frinks’s Counsel: Well, it would be 20 if she – with no color of
title, it would be 20; but again, it would require
that Mrs. Frinks knew and sat back and did
nothing or acquiesced and that is the problem.
Ms. Horvath: I thought it was seven years.
The Court: All right. Now, I understand, okay.
Ms. Frinks’s Counsel: Well, we will concede 30 if she says –
The Court: Well –
Ms. Horvath: I was told it was seven.
The Court: -- I think it is 20, but I am going to look at
something before I say that.
13
Ms. Frinks’s Counsel: It is 20, to be honest with the Court. It is 20
under prescriptive easements. The seven year
and the 30 year is the statutory approach, but
the common law approach is 20.
The Court: I gotcha.
Ms. Horvath: I wasn’t hiding my dock, Your Honor.
The Court: I understand.
Ms. Horvath: My dock sat there the whole time.
The Court: I understand.
Ms. Horvath: Nobody ever came up, told me you are
trespassing on my land. Nobody ever put up
signs saying you are not supposed to have a
dock here.
The Court: Let me ask you this: Has TVA ever revoked
your dock permit or told you to remove your
dock, or is it still sitting there?
Ms. Horvath: I never had a dock permit.
On appeal, Ms. Frinks argues that because Ms. Horvath had not pled the
affirmative defense of adverse possession, “counsel for [Ms. Frinks] was not prepared to
state the date of the filing of this action.” Ms. Frinks thereby asserts that her counsel was
not prepared to inform the trial court that this action was commenced six weeks shy of
twenty years after Ms. Horvath obtained title to her property. We determine Ms. Frinks’s
argument in this regard to be unavailing. Ms. Horvath’s warranty deed was introduced
into the record during trial when Ms. Frinks’s counsel presented a copy of it in response
to a question from the trial court. The complaint, of course, originally had been filed by
Ms. Frinks. The record before us demonstrates, as it would have to the trial court, that
Ms. Horvath’s warranty deed was executed on November 14, 1992, and that Ms. Frinks
filed the complaint commencing this action on October 3, 2012, nineteen years and forty-
six weeks later.8 Ms. Frinks’s argument that she was prejudiced by lack of notice that she
would need to inform the trial court of the complaint’s filing date is unavailing.
8
Upon Ms. Frinks’s motion during the pendency of the appeal, this Court entered an order allowing Ms.
Frinks to supplement the record with legible copies of the front and back pages of the complaint because
14
Moreover, Ms. Frinks’s counsel’s readiness at trial to discuss the time periods
relevant to statutory and common law adverse possession, as well as prescriptive
easement, and to quote our Supreme Court’s decision in Cumulus, 226 S.W.3d 366,
demonstrates that counsel was aware of the potential defense and, in fact, engaged in a
counter-defense without raising an objection that Ms. Horvath had not originally pled
adverse possession. In addition, counsel subsequently cross-examined Ms. Horvath
regarding the placement of her newer, larger dock in a manner clearly designed to
determine whether her possession had been continuous and uninterrupted, an element of
adverse possession. See Cumulus, 226 S.W.3d at 376. We conclude that inasmuch as
Ms. Frinks knew of the evidence relating to adverse possession, did not object to the
evidence, and was not prejudiced by the introduction of such evidence, the affirmative
defense of adverse possession was tried as an issue by implied consent. See Hiller, 915
S.W.2d at 804.
We note that Ms. Horvath, acting pro se, did not request to amend her answer to
add adverse possession as an affirmative defense. However, in ruling on the theory of
adverse possession, the trial court impliedly exercised its discretion to find that the
defense had been tried. See Tenn. R. Civ. P. 15.02 (providing that failure to amend a
pleading to include issues tried by express or implied consent “does not affect the result
of the trial of these issues”). In any event, we determine that Ms. Frinks waived any
objection to the defense of adverse possession by failing to raise an objection before the
trial court. See, e.g., C & W Asset Acquisition, LLC v. Oggs, 230 S.W.3d 671, 679 (Tenn.
Ct. App. 2007), perm. app. denied (Tenn. May 14, 2007) (“[The plaintiff] raised no
objection to the trial court’s decision upon the ground that it was based upon an
affirmative defense not raised in accordance with Rule 8.03, nor did [the plaintiff]
otherwise object to [the defendant’s] failure to comply with that Rule, and it is well-
settled that an issue not raised in the trial court will not be entertained on appeal.”).
B. Finding of Adverse Possession
In dismissing the instant action, the trial court in its final judgment made the
following specific findings of fact in pertinent part:
[I]t appearing to the Court that Donna Frinks owns the property below
contour 1002, adjacent to the property of Horvath consisting of 5.9 acres,
and designated as Map 78, Parcel 1.01 on the tax rolls for Jefferson County,
the date of filing was illegible on the copy originally in the record. As Ms. Frinks noted in the relevant
motion, however, the trial court’s Rule Docket Report reflected the date of the complaint’s filing. Our
analysis of this issue is not affected by the illegibility of the filing date on the copy of the complaint first
submitted to this Court.
15
Tennessee, and it further appearing to the Court that Horvath has had a
dock adjacent to her property, located on the property of Donna Frinks
when water levels are down and floating above it when the waters are high
since 1992, and it further appearing to the Court that although Donna
Frinks had no knowledge of the trespass because she resides either in the
State of Florida and near Sweetwater, Tennessee, the Court finds that she
should have known of the trespass by Horvath and by taking no action for
more than twenty (20) years since the onset of the trespass by Horvath, that
Frinks has acquiesced in the trespass; the Court further finds that the
Horvath possession was continuous and uninterrupted even when the dock
was floating above the Frinks property, even though Horvath concluded she
did not possess against Frinks when her dock was floating[.]
We note at the outset that on appeal, Ms. Frinks characterizes the trial court’s
finding as one of an “easement by prescription” based on adverse possession. However,
the trial court did not use the term, “easement,” in the final judgment. Our Supreme
Court has described “prescriptive easement” as “[a] doctrine related to adverse
possession,” explaining that “[g]enerally, this easement arises when a use, as
distinguished from possession, is adverse rather than permissive, open and notorious,
continuous and without interruption, and for the requisite period of prescription.”
Cumulus, 226 S.W.3d at 378 (quoting Ralph E. Boyer, Survey of the Law of Property
569-70 (3d ed. 1981)). The “primary distinction” between the doctrines of adverse
possession and prescriptive easement “is that the adverse possessor occupied the land of
another, whereas, in prescription, there is merely adverse use of the land of another.”
Cumulus, 226 S.W.3d at 378 (emphasis in original). “The requisite period of time of
continuous use and enjoyment for a prescriptive easement is twenty years.” Id. at 379.
In reviewing the trial court’s final judgment and oral ruling announced at the close
of trial, we determine that the court did not conclude that Ms. Horvath had established a
prescriptive easement. At the close of trial, the court stated the following in pertinent
part:
[T]he Court, of course, finds that through inadvertence, whatever it might
have been, all of Ms. Frinks[’s] property was not liquidated back at the time
they thought they were liquidating it and she does, in fact, still own the
property that she claims in the pleadings is hers, but the facts of Mrs.
Horvath’s case are such that the Court believes that she has had her dock
there for a sufficient amount of time, be it seven or 20 years to acquire a
right to maintain the dock.
16
The Court is not going to pass on whether or not she has a valid
permit or not, but the Court does think that she has a sufficient right
acquired by the passage of time to at least apply for a permit and an
easement to maintain her dock, but the Court acknowledges that Mrs.
Frinks does, in fact, own the land under the water where that dock is.
Mrs. Horvath testified, and I believe told me the truth that she has
had a dock out there since 1992, and I believe that is a sufficient amount of
time. That is a long time. Now, [Ms. Frinks’s counsel], in connection with
what you said about Mrs. Frinks didn’t really [know she] owned the
property, therefore, it was hard for her to acquiesce, I think the law in
Tennessee is that if you own property you are under a duty to know it,
know its boundaries, manage it in a diligent manner, and she at least should
have known that that dock was on her property because it was there for all
the world to see, and I believe that that by operation of law is, in fact,
acquiescence on the part of Mrs. Frinks because of the passage of so much
time.
So the request for injunctive relief and damages against Mrs.
Horvath would be denied by the Court and the Complaint in so far as it asks
for relief against her would be dismissed.
***
I declare Mrs. Frinks to be the owner of the underlying property that she
claims, but I believe that Mrs. Horvath has had a dock there a sufficient
amount of time to acquire the right to leave it here.
We emphasize that “a court speaks through its orders and not through the transcript,” see
Alexander v. JB Partners, 380 S.W.3d 772, 777 (Tenn. Ct. App. 2011), and we reiterate
that the trial court did not use the term, “easement,” in its final judgment. Furthermore,
even in comments made at the close of trial, the court’s only mention of an easement was
in relation to whether Ms. Horvath had “a sufficient right acquired by the passage of
time” to apply with TVA for a dock permit and “an easement to maintain her dock.”
Moreover, in finding that Ms. Horvath had maintained a dock located on Ms. Frinks’s
property “when water levels [were] down and floating above it when the waters [were]
high since 1992,” the court found that Ms. Horvath had “possessed,” or occupied, the
relevant portion of the Disputed Property, rather than merely using it. We therefore
analyze the trial court’s finding as one of adverse possession.
17
As to the time period of Ms. Horvath’s possession, Ms. Frinks asserts that the trial
court erred by finding that Ms. Horvath had possessed the portion of the Disputed
Property under her dock for the period of twenty years required for common law adverse
possession. We agree with Ms. Frinks on this point. The trial court appeared to base its
finding of “more than twenty years” on testimony related to the amount of time that had
passed by the time of trial in November 2015. However, the determinative time period
tolls with commencement of the action. See, e.g., Boyd v. Ducktown Chem. & Iron Co.,
89 S.W.2d 360, 364 (Tenn. Ct. App. 1935), perm app. denied (Tenn. Jan. 11, 1936)
(analyzing a common law adverse possession claim from the time period “twenty years
before the bringing of this suit”); Logan v. Estate of Cannon, No. E2015-02254-COA-
R3-CV, 2016 WL 5344526, at *10 (Tenn. Ct. App. Sept. 23, 2016) (analyzing a claim for
common law adverse possession and noting that “the twenty-year period prior to
commencement of the instant action began in February 1991.”). For her part, Ms.
Horvath appears to misunderstand the tolling of the twenty-year period, but she
acknowledges that she did not place a dock on the Disputed Property until the point at
which she purchased her tract of land. The time period between Ms. Horvath’s
acquisition of title to her property on November 14, 1992, and the commencement of this
action on October 3, 2012, was nineteen years and forty-six weeks, six weeks short of
twenty years. The trial court erred in finding that the requisite period for common law
adverse possession had been met.
Our analysis does not end here, however. In contrast to the common law form,
certain statutory provisions regarding adverse possession require a seven-year period.
See Tenn. Code Ann. §§ 28-2-101 to -103 (2000); Cumulus, 226 S.W.3d at 376. Ms.
Frinks asserts that statutory adverse possession is unavailable to Ms. Horvath because it
requires color of title, which it is undisputed Ms. Horvath does not hold as to the portion
of Disputed Property upon or over which her dock has been located. See Cumulus, 226
S.W.3d at 376 n.3 (defining color of title as “‘something in writing which at face value,
professes to pass title but which does not do it, either for want of title in the person
making it or from the defective mode of the conveyance that is used.’”) (quoting
Thompson on Real Property § 87.12, at 145 (David A. Thomas ed., 1994)). The warranty
deed to Ms. Horvath’s property provides the following property description in relevant
part:
BEGINNING in the center line of a road, corner with Tract No. 11 of said
Subdivision; thence with the center line of said road, North 21 degrees 00
minutes West, 300 feet to a point in the center line of said road, corner with
Tract No. 9 of said Subdivision; thence South 69 degrees 45 minutes East
900 feet to a point in the 1002 contour line of Douglas Lake and a corner
with Lot No. 9 of said Subdivision; thence in a Southerly direction with the
1002 contour line of Douglas Lake, a distance of 375 feet with the 1002
18
contour line of Douglas Lake; thence North 69 degrees 45 minutes East 815
feet to the point of BEGINNING, and containing 5.9 acres, more or less.
Ms. Horvath’s relevant boundary line thus follows the 1002 contour line of Douglas
Lake, the contour line below which Ms. Frinks’s property lies. Ms. Horvath
acknowledges that prior to learning of Ms. Frinks’s claim, she had believed that the
property between her boundary line and Douglas Lake was controlled by TVA and knew
that it was not included in her title.
Although Ms. Frinks is correct in asserting that color of title is required to
establish an affirmative defense of adverse possession pursuant to Tennessee Code
Annotated § 28-2-102, she does not address the defense afforded, regardless of color of
title, by Tennessee Code Annotated § 28-2-103, which “does not involve color of title”
and “protects an adverse holder after a period of seven years but only as to that portion of
the land in his actual possession.” See Cumulus, 226 S.W.3d at 376; Phelps v. Benke,
No. M2015-02212-COA-R3-CV, 2017 WL 113965, at *6 (Tenn. Ct. App. Jan. 11, 2017)
(“Color of title is not necessary . . . to assert a defense under Tennessee Code Annotated
section 28-2-103.”). Tennessee Code Annotated § 28-2-103 provides:
(a) No person or anyone claiming under such person shall have any
action, either at law or in equity, for the recovery of any lands,
tenements or hereditaments, but within seven (7) years after the right
of action accrued.
(b) No possession of lands, tenements or hereditaments shall be deemed
to extend beyond the actual possession of an adverse holder until the
muniment of title, if any, under which such adverse holder claims
such lands, tenements or hereditaments is duly recorded in the
county in which the lands are located.
As this Court has explained:
Tenn. Code Ann. § 28-2-103 bars the right of the title owner to recover
property that has been adversely held for more than seven years. Teeples v.
Key, 500 S.W.2d 452, 456 (Tenn. Ct. App. 1973). The statute does not
convey title, but may be used defensively by the adverse holder. It is “a
defensive statute and protects the adverse holder in possession to the extent
and upon the terms set forth in the statute.” Moore [v. Brannan], 42 Tenn.
App. [542,] 564, 304 S.W.2d [660,] 662 [(Tenn. Ct. App. 1957)]; see also
Lemm [v. Adams], 955 S.W.2d [70,] 73 n.1 [(Tenn. Ct. App. 1997)] (stating
19
that the statute provides a valid defense but does not entitle the adverse
holder to a decree granting him title).
Michael v. Jakes, No. M1999-02257-COA-R3-CV, 2002 WL 1484448, at *13 (Tenn. Ct.
App. July 12, 2002), perm. app. denied (Tenn. Dec. 2, 2002); see also Vincent v.
Johnston, No. E2013-00588-COA-R3-CV, 2014 WL 279682, at *17 (Tenn. Ct. App. Jan.
24, 2014) (holding that, pursuant to Tenn. Code Ann. § 28-2-103 and despite no color of
title, the defendant had established the defense of adverse possession to the extent that his
improvements had adversely encroached upon the plaintiff’s property for a period of at
least seven years).
We conclude that the trial court’s error in calculating Ms. Horvath’s adverse
possession as “more than twenty years” was harmless insofar as Ms. Horvath could
establish an affirmative defense by demonstrating adverse possession for a period of at
least seven years pursuant to Tennessee Code Annotated § 28-2-103. We next address,
within the scope of a seven-year time period, Ms. Frinks’s arguments that the trial court
erred in finding adverse possession because (1) 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 (2) Ms. Horvath’s possession was
not continuous and uninterrupted. We note that the determinative seven-year time period
prior to commencement of this action began on October 3, 2005.
The trial court essentially found that Ms. Frinks was on record or constructive
notice, even prior to the 2006 telephone call she received regarding her property
ownership rights, to realize that the Disputed Property was hers. We agree. This Court
previously has explained:
As stated by this Court in Associates Home Equity Services, Inc. v.
Franklin Nat. Bank, No. M2000-00516-COA-R3-CV, 2002 WL 459007
(Tenn. Ct. App. 2002) per[m]. app. denied (Tenn. Oct. 21, 2002):
Notice may be imparted in several ways. There may be
actual notice, which is the equivalent of personal knowledge
on the part of the purchaser, or there may be record notice
(sometimes called ‘constructive’ notice), deriving from the
recordation of the prior instrument or something making
reference to i[t]. Finally, there is a form commonly referred
to as inquiry notice, which exists when the purchaser is in
possession of information or facts sufficient to cause a
reasonable person to make further inquiry as to the existence
and content of the unregistered document.
20
Id. at *2 n.4 (citing Toxey H. Sewell, The Tennessee Recording System, 50
Tenn. L. Rev. 1, 43-44 (1982)).
Milledgeville United Methodist Church v. Melton, 388 S.W.3d 280, 290 (Tenn. Ct. App.
2012), perm. app. denied (Tenn. Dec. 13, 2012).
Ms. Frinks testified that her mother grew up on the “land grant farm,” which was
the farm across the river from the 488-acre farm that her grandfather eventually devised
to her mother. According to Ms. Frinks, the land grant farm, which had been devised to
Ms. Frinks’s uncle, Robert Cowan, was submerged under water when TVA built Douglas
Dam. As a young child, Ms. Frinks then moved with her mother and uncle to Monroe
County, where they had purchased two farms. Ms. Frinks subsequently attended Duke
University, began teaching in Florida, and met and married her husband in Florida. She
had lived in Florida ever since except for vacations to a cabin she and her husband
purchased in Monroe County. Ms. Frinks testified that in approximately 1986, her
mother brought her and her family to visit the “home place” by Douglas Lake but that she
did not return again until she received the telephone call regarding her ownership rights
in 2006. Ms. Frinks stated that for her mother and uncle, the loss of the land grant farm
“was just such an uncomfortable, bitter subject that they both just shut down when we
asked anything about it.”
Although we certainly recognize and respect Ms. Frinks’s family members’
painful history of relinquishing their land for construction of the Douglas Dam, this does
not alter the fact that the deeds on record in the office of the Jefferson County Register of
Deeds, copies of which were attached to Ms. Frinks’s complaint, were a matter of public
record and available for her perusal at any time. We conclude that Ms. Frinks was on
record or constructive notice of her ownership rights in the Disputed Property well before
October 3, 2005. Moreover, given the subdivision of the nearby property into lakefront
tracts in the 1950s and the open and obvious placement of Ms. Horvath’s dock on the
Disputed Property in 1992, we conclude that Ms. Frinks was on inquiry notice that Ms.
Horvath possessed a portion of the Disputed Property well before October 3, 2005. See
generally Bobo v. City of Jackson, No. W2015-00386-COA-R3-CV, 2015 WL 7890526,
at *9 (Tenn. Ct. App. Dec. 4, 2015) (“‘Inquiry notice exists when a purchaser has notice
of some fact that, in accordance with human experience, is sufficiently curious or
suspicious that the purchaser should be obliged to make a further inquiry into it.’”)
(quoting 77 Am. Jur. 2d Vendor and Purchaser § 385 (2006)).
Ms. Frinks also argues that Ms. Horvath’s possession was not continuous and
uninterrupted because Ms. Frinks installed a new dock at some point five to ten years
prior to trial, resulting in “an interruption of her possession because no dock was present
21
for up to several days.” Ms. Horvath asserts that as she was installing a new dock, the
old one remained in place and that the two docks were essentially in the same location.
During cross-examination of Ms. Horvath at trial, the following exchange ensued
regarding Ms. Horvath’s replacement of the old dock:
Ms. Frinks’s Counsel: Was there a period of a day or two or whatever,
a week, where the old one was gone and the
new one wasn’t there yet?
Ms. Horvath: Not really. It was basically just put a bigger
one in there.
Ms. Frinks’s Counsel: Did some time go by?
Ms. Horvath: I think so. It’s been a long time.
Ms. Frinks’s Counsel: Well, it could have been anywhere from
seconds to days or months?
Ms. Horvath: Oh, I don’t remember.
Ms. Frinks’s Counsel: Could it have been a few days?
Ms. Horvath: It could have, I don’t know. I can’t remember.
Ms. Frinks’s Counsel: But that would have been the last five or ten
years, something like that?
Ms. Horvath: Probably.
The trial court declined to find that Ms. Horvath had abandoned her possession of the
portion of Disputed Property under the dock while she replaced the old dock with a
newer, larger one. Setting aside that the replacement of the old dock may have occurred
more than seven years prior to commencement of the instant action, we also cannot
conclude from this testimony that Ms. Horvath removed all dock material from the
portion of the Disputed Property at issue for any length of time. We conclude that the
evidence does not preponderate against the trial court’s finding in this regard.
Finally, Ms. Frinks argues that Ms. Horvath’s possession could not have been
continuous and uninterrupted because it was seasonal in that the dock only rested on the
land in months when the water levels were low. The trial court, however, expressly
22
found that the possession “was continuous and uninterrupted even when the dock was
floating above the Frinks property . . . .” We agree. Ms. Frinks has cited no authority in
support of her assertion that Ms. Horvath’s occupation of the land underneath her dock
would be interrupted by the rise of the water covering that land several months of the
year. Ms. Frinks also stops short of arguing that she herself loses title to the Disputed
Property below the 1002 contour line of Douglas Lake when the water levels are high.
See generally State ex rel. Cates v. W. Tenn. Land Co., 158 S.W. 746, 752 (Tenn. 1913)
(“As these lands were . . . subject to private ownership before the formation of the lake
[by an earthquake], we are of opinion that the mere fact that they [monuments of
boundary] have since become submerged by a body of navigable water does not deprive
the owners of their title to the land as long as they [monuments of boundary] can be
reasonably identified.”).9 Ms. Frinks’s argument regarding seasonality is unavailing.
We conclude that the trial court did not err in finding that Ms. Horvath
successfully established clear and convincing evidence of her exclusive, actual, adverse,
continuous, open, and notorious possession of the portion of the Disputed Property under
her dock, regardless of whether the dock was resting on the land or floating on the water
above the land. Although we determine that the trial court erred in finding this adverse
possession to be for a time period of at least twenty years, we further determine this error
to be harmless because Ms. Horvath did establish the seven-year time period required for
the affirmative defense of adverse possession pursuant to Tennessee Code Annotated §
28-2-103. We note that the trial court properly did not vest title of any portion of the
Disputed Property to Ms. Horvath because she established only the shield of an
affirmative defense by operation of the seven-year statutory limitation of action. See
Michael, 2002 WL 1484448, at *13 (explaining that although Tennessee Code Annotated
§ 28-2-103 “may be used defensively by the adverse holder,” the statute “does not
convey title”); see also Lemm v. Adams, 955 S.W.2d 70, 73 n.1 (Tenn. Ct. App. 1997).
V. Injunctive Relief
Ms. Frinks also contends that the trial court erred by declining to grant her request
for an injunction ordering Ms. Horvath to remove the dock. Having determined that Ms.
Horvath successfully established the defense of adverse possession, we further determine
that the trial court did not err by dismissing Ms. Frinks’s request for injunctive relief
upon the allegation of trespassing. In addition to claiming trespass, Ms. Frinks also avers
9
For the purposes of review in this action, we do not find it necessary to address whether Douglas Lake is
navigable in the “ordinary sense” or “legal sense,” with the latter indicating that the public would
maintain an easement to use the waterway above the Disputed Property despite Ms. Frinks’s retention of
title. See Webster v. Harris, 69 S.W. 782, 784 (Tenn. 1902), overturned on other grounds by State ex rel.
Cates, 158 S.W. 746; City of Townsend v. Damico, No. E2013-01778-COA-R3-CV, 2014 WL 2194453,
at *4-5 (Tenn. Ct. App. May 27, 2014).
23
that Ms. Horvath has failed to comply with a TVA requirement to obtain a permit prior to
constructing an “obstruction affecting navigation, flood control or public lands or
reservations along or in the Tennessee River or any of its tributaries.” See 18 C.F.R. §
1304.1 (including boat docks in a list of obstruction examples). The trial court found in
its final judgment that it did “not have jurisdiction to direct that the Tennessee Valley
Authority revoke [Ms. Horvath’s] permit, but [Ms. Frinks] may proceed through
appropriate channels to nullify the permit.” We note that Ms. Horvath acknowledged that
she had never applied for or obtained a permit for her dock. In any event, we agree with
the trial court that inasmuch as TVA is not a party to this action, the trial court did not
have jurisdiction to grant injunctive relief against Ms. Horvath on behalf of TVA. Ms.
Frinks is not entitled to injunctive relief based on the instant action.
VI. Conclusion
For the reasons stated above, we affirm the trial court’s judgment. This case is
remanded to the trial court, pursuant to applicable law, for enforcement of the trial court’s
judgment and collection of costs assessed below. The costs on appeal are assessed
against the appellant, Donna Babb Frinks.
________________________________
THOMAS R. FRIERSON, II, JUDGE
24