The opinion
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
July 13, 2005 Session
EDMUND R. BRILEY, ET AL. v. GARY W. CHAPMAN, ET AL.
A Direct Appeal from the Chancery Court for Rutherford County
No. 02 4176 CV The Honorable Robert E. Corlew, III, Chancellor
No. M2004-01303-COA-R3-CV- Filed August 5, 2005
This appeal involves the question of the statute of limitation for an action for libel of title.
The trial court granted summary judgment to the defendants, holding that the proper statute of
limitation was found at T.C.A. § 28-3-105. Without reaching a decision on the merits, an
examination of the record indicates that the notice of appeal was not timely. Therefore, this Court
does not have jurisdiction, and the appeal must be dismissed.
Tenn. R. App. P. 3; Appeal as of Right; Appeal Dismissed
W. FRANK CRAWFORD , P.J., W.S., delivered the opinion of the court, in which ALAN E. HIGHERS,
J. and HOLLY M. KIRBY , J., joined.
Frank M. Fly of Murfreesboro, Tennessee for Appellants, Edmund R. Briley and Margaret Coleman
Briley
No appearance by Appellees
OPINION
By deed dated May 27,1981, of record in Deed Book 302 at page 828, in the Register’s
Office of Rutherford County, Tennessee, Laudis Hartman Briley conveyed a 60.55 acre tract of land
in Rutherford County (the “Edmund Briley Tract) to her son Edmund R. Briley and his wife
Margaret Briley (together the “Brileys,” “Plaintiffs,” or “Appellants”). The Brileys’ deed reads, in
pertinent part, as follows:
Included in this conveyance is a right-of-way 50 feet wide and leading
from the NE corner of this tract through the remaining lands of
grantor to the end of Briley Lane. Exact route of said right-of-way to
be determined later.
The Brileys have owned the Edmund Briley Tract from the date of the conveyance.
By separate deed, also dated May 27, 1981, of record in Deed Book 302 at page 826 in the
Register’s Office of Rutherford County, Tennessee (the “Marvin Briley Deed”), Laudis Hartman
Briley granted an adjoining 60.55 acre tract (the “Marvin Briley Tract”) to her other son Marvin L.
Briley and his wife Thelma T. Briley. The Marvin Briley Deed reads, in relevant part, as follows:
The tract herein described is subject to a 50-foot right-of-way for
ingress and egress to a 60.55 acre tract deeded to Edmund R. Briley.
Included with this conveyance is a right-of-way, 50 feet wide and
leading from the NE corner of this tract through the remaining lands
of Mrs. Charles L. Briley to the west end of Briley Lane. Exact route
of said right-of-way to be determined later.
By Warranty Deed dated July 12, 1985, of record in Deed Book 347 at page 741 in the
Register’s Office of Rutherford County, Tennessee (the “Brown Deed”), Marvin Briley and his wife
conveyed the Marvin Briley Tract to Edmond Brown and his wife Sandra Dee Brown. The last
paragraph of the description in the Brown Deed recites verbatim the language from the Marvin
Briley Deed as set out above.
By Warranty Deed dated March 1, 1988, of record in Deed Book 400 at page 411 in the
Register’s Office of Rutherford County, Tennessee (the “Nunn Deed”), Edmund E. Brown and his
wife conveyed the Marvin Briley Tract to Ronald S. Nunn and his wife Joyce E. Nunn (the “Nunns,”
or “Appellees”). The Nunn Deed was prepared by Ronald Nunn, who is not a licensed attorney in
Tennessee. The Nunn Deed omits the right-of-way language contained in both the Marvin Briley
Deed and the Brown Deed.
Although no plat was ever recorded in the Register’s Office, the Nunns constructed Laura
Ridge Road as a private road 50 feet in width from the west end of Briley Road to just past the center
of the Marvin Briley Tract and divided the Marvin Briley Tract into seven lots ranging in size from
6 acres to 14.69 acres. The seven lots were subsequently conveyed as follows:
• Gary Chapman and his wife Mary Chapman (the
“Chapmans”) are the present owners of an 8.52 acre lot. This
lot was deed directly from the Nunns to the Chapmans by
deed dated February 6, 1991 of record in Deed Book 457 at
page 152 in the Register’s Office of Rutherford County (the
“Chapman Deed”). The Chapman Deed omits the right-of-
way language set out in the Marvin Briley Deed, supra.
• Arthur S. Hickman (“Hickman”) is the current owner of a 6.0
acre lot. Hickman purchased this property from Jane P.
Holley by deed dated March 31, 1994, of record in Deed
Book 522 at page 580 in the Register’s Office of Rutherford
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County (the “Hickman Deed”). This tract was previously
conveyed from the Nunns to Murray to Holley. None of these
deed, including the Hickman Deed, contain the right-of-way
language set out in the Marvin Briley Deed, supra.
• Darrell Bruce Wardlaw (“Wardlaw”) is the current owner of
a 6.01 acre lot. Wardlaw purchased his lot from Sharon
Turcotte by deed dated March 9, 1992, of record in Deed
Book 477 at page 687 in the Register’s Office of Rutherford
County (the “Wardlaw Deed”). This tract was previously
conveyed by the Nunns to Ms. Turcotte. Neither the deed
from the Nunns to Ms. Turcotte, nor the Wardlaw Deed,
contains the right-of-way language set out in the Marvin
Briley Deed, supra.
• Richard L. Johnson and his wife Jennifer A. Johnson (the
“Richard Johnsons”) are the present owners of a 9.01 acre
tract. The Richard Johnsons purchased said tract from the
Nunns by deed dated January 10, 1990, of record in Deed
Book 437 at page 770 in the Register’s Office of Rutherford
County (the “Richard Johnson Deed”). The Richard Johnson
Deed omits the right-of-way language set out in the Marvin
Briley Deed, supra.
• Jeffrey L. Adcock (“Adcock”) is the present owner of an 8.05
acre tract. Adcock purchased said property from Daniel
Fringer and his wife Brenda Harden Fringer by deed dated
November 30, 1995, of record in Deed Book 562 at page 602
int eh Register’s Office of Rutherford County (the “Adcock
Deed”). This tract was previously conveyed from the Nunns
to Whitaker to Fringer. All of these deeds, including the
Adcock Deed, omit the right-of-way language set out in the
Marvin Briley Deed, supra.
• Timothy M. Milliken (“Milliken”) is the present owner of an
8.61 acre lot. Milliken purchased said property from the
Nunns by deed dated October 26, 1988, of record in Deed
Book 415 at page 429 in the Register’s Office of Rutherford
County (the “Milliken Deed”). The Milliken Deed omits the
right-of-way language set out in the Marvin Briley Deed,
supra.
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• Roy A. Johnson and his wife Karyn V. Johnson (the “Roy
Johnsons”) are the current owners of a 14.69 acre tract. The
Roy Johnsons purchased said tract from the Nunns by deed
dated May 17, 1990, of record in Deed Book 444 at page 297
in the Register’s Office of Rutherford County (“the Roy
Johnson Deed”). The Roy Johnson Deed also omits the right-
of-way language set out in the Marvin Briley Deed, supra.
On May 1, 1988, the Nunns executed a document entitled “Land Owners Association and
Private Roadway Easement for Laura Ridge Estates,” of record in Deed Book 404 at page 178 in the
Register’s Office of Rutherford County. This document contains a declaration of restrictive
covenants for Laura Ridge Estates Landowners’ Association (the “LRE Association,” and together
with the Nunns, the Chapmans, Hickman, Wardlaw, the Richard Johnsons, Adcock, Milliken, and
the Roy Johnsons, “Defendants”). The primary purpose of the instrument filed by the Nunns
appears to be the creation of a right-of-way easement for ingress and egress for the use and benefit
of all residents of Laura Ridge Estates, and to provide a funding mechanism for the maintenance of
this road by the members of the LRE Association. Said right-of-way is presently a gravel road
known as Laura Ridge Road that connects to Briley Road on the east and dead-ends at a cul-de-sac
on the west.
On September 7, 1999, the Brileys executed a document entitled “Establishment of Definite
Right-of-Way,” of record in Deed Book 660 at page 674 in the Register’s Office of Rutherford
County. The purpose of this instrument was to record a survey description and plat of where the
Brileys wished to establish their easement across the lands of Defendants as provided in the Brileys’
Deed as set out above.
On October 25, 1999, Mr. Nunn sent a letter to the Brileys’ attorney. This letter reads, in
pertinent part, as follows:
...the Briley deed said a right of way “to be determined”. This was
not done by any one until June of 1999. Before I purchased this
property I attempted to get Mr. Edmund Briley to determine this right
of way which by survey for Laudis Hartman Briley starts at the end
of Briley Lane in the Gary N. Patton property.... Mr. Edmund Briley
informed me that he had a right of way out to Independant [sic] Hill
Road and did not want or need a right of way out over the tract in
question or across Mr. Patton. Mr. Patton would not grant or allow
a right of way without going to court and neither Mrs. Laudis Briley
nor Edmund Briley would help “to determine” the right of way now
claimed. I purchased other land to gain access to the Briley tract now
known as Laura Ridge and took title to the Marvin Briley tract on 7th
of March, 1988 without any right of way “determined” and with
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hostile intent to foreclose any rights Mr. Edmund Briley might have
to a right of way across the purchased tract.
Mr. Edmund Briley gave up his right to any right of way by
his failure “to determine” his right of way in a timely manner nor was
there any long used right of way in use across the tract I have
purchased. I claim adverse rights to any right of way he may have
had the rights to in his deed. I filed a deed claiming the land without
any right of way and developed it with his full knowledge without any
right of way to his tract.
On or about March 6, 2002, the Brileys filed suit against the Defendants to enforce an express
easement as contained in the Brileys’ Deed. In the alternative, the Brileys claimed an easement by
necessity. The Brileys also sought compensatory and punitive damages against the Nunns due to the
Nunns’ omitting the right-of-way language from the deeds the Nunns prepared, which necessitated
the Brileys’ suit. On or about March 27, 2002, the Nunns filed a Motion to Dismiss and
Memorandum in Support thereof. On April 26, 2002, the Brileys’ filed a Response to the Nunns’
Motion to Dismiss. By Order of August 2, 2002, the trial court denied the Nunns’ Motion to
Dismiss, indefinitely stayed the Brileys’ cause of action to establish an easement by necessity
pending a determination by the trial court on the Brileys’ claim concerning enforcement of an
express easement, and granted the Brileys’ motion to amend their pleadings.
On March 13, 2003, the Brileys filed “Plaintiffs’ Amended Complaint against Defendants
Nunn” seeking compensatory and punitive damages against the Nunns on a “slander of title”claim.
Specifically, the Brileys assert that the Nunns’ omission of the Brileys’ right-of-way in the deeds
prepared by the Nunns and filed in the Register’s Office of Rutherford County, see supra, amounted
to the Nunns claiming that the Brileys did not own any easement or right-of-way across the Marvin
Briley Tract when, in fact, as evinced by the Brileys’ Deed and the Marvin Briley Deed, such right
exists. On March 27, 2003, the Nunns filed an Answer to the Amended Complaint in which they
raised as one of their affirmative defenses that the Brileys’ “claims are barred in whole by the
applicable statute of limitations.” On June 23, 2003, the Brileys filed “Plaintiff’s Motion for
Summary Judgment against Defendant Nunn,” along with a statement of undisputed material fact,
memorandum of law, and the Affidavit of Edmund Briley in support thereof. On July 25, 2003, the
Nunns also filed a motion for summary judgment, again asserting that the Brileys’ claims are barred
by the applicable statute of limitations. The Nunns’ motion was supported by the Affidavit of
Ronald S. Nunn, a statement of material fact, and a memorandum of law. On the same date, the
Nunns filed responses to the Brileys’ motion for summary judgment.
On August 12, 2003, the trial court entered an “Agreed Order” wherein the Brileys’ easement
over the respective properties of the Chapmans, Hickman, Wardlaw, the Richard Johnsons, Adcock,
Milliken and the Roy Johnsons was established. On August 21, 2003, the Brileys filed a Response
to the Nunns’ motion for summary judgment, in which the Brileys assert that the ten-year statute of
limitations found at T.C.A. §28-3-110 is applicable to their libel of title claim against the Nunns.
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A hearing on the cross-motions for summary judgment was held on August 28, 2003. On
November 7, 2003, the trial court entered its interim “Order” denying the Brileys’ motion for
summary judgment and granting the Nunns’ motion for summary judgment upon the court’s finding
“that the three year statute of limitations in T.C.A. §23-3-105 bars [the Brileys’] complaint against
Defendants Nunn....” The trial court’s Memorandum Opinion dated August 4, 2003, which is
incorporated by reference into the Order, reads, in relevant part, as follows:
...[T]he central issue is whether the Plaintiff’s libel of title claim, if
proved, is barred by statutes of limitation applicable to personal or
property torts, or whether a longer statute of limitation applies. After
due consideration, we must respectfully find that the Plaintiff’s claim
is barred by statute of limitation, for the reasons stated below.
* * *
In the case at bar, we find that the Brileys’ libel of title claim
arises from the same transaction and common set of operative facts,
in which the Brileys were Plaintiffs in a related matter, heard by this
Court on July 30, 2003. The cause heard on that date was essentially
one concerning injury to the Brileys’ property rights. Likewise, we
find that the gravamen of the Brileys’ current complaint essentially
concerns injury by the Nunns to the Brileys’ property interest because
the basis for which the Brileys seek damages is injury to the value of
and rights in their property. In light thereof, and in light of our
reading of Swauger v. Haury & Smith Contractors, Inc., we are not
persuaded by the Brileys’ argument that the limitation period in this
case extends to the ten (10) year statute of limitation under Tennessee
Code Annotated §2[8]-3-110[(3)]. Thus, we think that the three (3)
year statute of limitation under Tennessee Code Annotated §2[8]-3-
105 is appropriate in this case....
On May 7, 2004, the trial court entered an “Agreed Final Order.” The Brileys filed a notice
of appeal from this Order on May 19, 2004 and raise one issue for review as stated in their brief:
Which statute of limitation should be applied to libel of title actions?
However, we do not reach consideration of the issue presented by Plaintiffs/Appellants,
because the review of the record in this case reveals that the notice of appeal was not timely. As
noted previously, on August 12, 2003, an Order was entered granting partial summary judgments to
all of the defendants, except the Nunns; and, on November 7, 2003, the trial court entered an Order
granting summary judgment to the Nunns against the Brileys. From the record before us, we have
determined that this Order disposed of all of the claims against all of the parties in this case.
However, on May 7, 2004, the trial court entered an “Agreed Final Order,” which reflected on its
face that all matters between the parties had been finally disposed of by an Order dated April 7, 2004.
Unfortunately, the record does not contain such an Order and apparently the court was referring to
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the Order entered November 7, 2003, disposing of the claim by the Brileys against the Nunns, and
to the previous Order of August 2003 that disposed of the claims against all other Defendants.
As this Court stated in Arfken & Associates v. Simpson Bridge Co., 85 S.W.2d 3d 789
(Tenn. Ct. App. 2002):
A notice of appeal must “be filed with and received by the
clerk of the trial court within thirty days after the date of entry of the
judgment appealed from.” Tenn. R. App. P. 3(a) (emphasis added).
“Entry of a judgment or an order of final disposition is effective when
[the] judgment...is marked on the face by the clerk as filed for entry.”
Tenn. R. Civ. P. 58 (emphasis added).
An appellate court is not authorized to extend the time for
filing a notice of appeal. Tenn. R. App. P. 2. By the same token, an
appellate court cannot “enlarge the time for filing a notice of appeal
prescribed in [Tenn. R. App. P.] 4.” Tenn. R. App. P. 21(b).
In civil cases, the failure to timely file a notice of appeal
deprives the appellate court of jurisdiction to hear the appeal.
McGaugh v. Galbreath, 996 S.W.2d 186, 189 (Tenn. Ct. App. 1998);
American Steinwinter Investor Group v. American Steinwinter,
Inc., 964 S.W.2d 569, 571 (Tenn. Ct. App. 1997). If the notice of
appeal is not timely filed, the appellate court is required to dismiss the
appeal. Id.
Id. at 791.
In the instant case, the entry of the Order granting the Nunns summary judgment against the
Brileys disposed of the only remaining claims in the case and, therefore, constituted the final order.
The “Agreed Final Order,” which purports to be the final order in the case was entered by the trial
court after the expiration of the trial court’s jurisdiction. The adjudication by the court of the final
claim existing in the case - that of the Brileys against the Nunns for libel of title - constituted the
final judgment, and the notice of appeal filed more than 30 days after the entry of that judgment is
a nullity.
Accordingly, the appeal is dismissed, and the costs of the appeal are assessed against the
Plaintiffs, Edmund R. Briley and Margaret Coleman Briley, and their surety.
__________________________________________
W. FRANK CRAWFORD, PRESIDING JUDGE, W.S.
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