Estate of Mary Lou Lamb v. D. Jimmy Brinias

IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

May 14, 2014 Session

ESTATE OF MARY LOU LAMB v. D. JIMMY BRINIAS, ET AL.

Appeal from the Chancery Court for Knox County

No. M-07-169211 Michael W. Moyers, Chancellor

No. E2013-01550-COA-R3-CV-FILED-JULY 1, 2014

The Estate of Mary Lou Lamb appeals a grant of summary judgment to defendant Ernest L.

Joyner raising issues regarding whether the Chancery Court for Knox County (“the Trial

Court”) erred in finding that the plaintiff’s response to the defendant’s motion for summary

judgment was filed untimely and therefore was not considered by the Trial Court, and

whether the Trial Court erred in granting summary judgment on the issue of adverse

possession. We find and hold: (1) that the Trial Court did not err in finding that the

plaintiff’s response was filed untimely; and (2) that Ernest L. Joyner failed to show that he

was entitled to summary judgment as a matter of law. We vacate the grant of summary

judgment on the issue of adverse possession and remand this case to the Trial Court for

further proceedings.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Vacated

Case Remanded

D. M ICHAEL S WINEY, J., delivered the opinion of the Court, in which C HARLES D. S USANO,

J R., C.J., and J OHN W. M CC LARTY, J., joined.

J. Nolan Sharbel, Knoxville, Tennessee, for the appellant, the Estate of Mary Lou Lamb.

Dudley W. Taylor, Knoxville, Tennessee, for the appellee, Ernest L. Joyner.

OPINION

Background

In 2007, Mary Lou Lamb (“Plaintiff”) sued D. Jimmy Brinias, Tammy D.,

Brinias, Bill G. Williams, and Wanda S. Williams with regard to a boundary line dispute.

Ms. Lamb later was granted permission to amend her complaint to add over a dozen

additional defendants including Ernest L. Joyner (“Defendant”). Ms. Lamb died in April of

2011, and the Trial Court entered an agreed order substituting Ms. Lamb’s estate 1 as the

Plaintiff in this case 2 .

Defendant filed a motion for summary judgment supported by his affidavit,

among other things. After a hearing, the Trial Court entered an order on February 26, 2010

finding and holding, inter alia, that although Plaintiff’s response to Defendant’s motion was

untimely and would not be considered, there was a genuine disputed issue of material fact

with regard as to when Plaintiff “first had actual knowledge of the open and notorious

possession of the disputed property by Joyner.” The February 26, 2010 order denied

summary judgment on the issue of adverse possession, but granted Defendant summary

judgment on the claims that Defendant had caused damage to Plaintiff’s property.

In January of 2013, Defendant filed a renewed motion for summary judgment

supported by his affidavit and Plaintiff’s responses to requests for admissions, among other

things. In pertinent part, Defendant’s affidavit stated:

2. My residence address is 6001 Hidden Brook Lane, Knoxville, Knox

County, Tennessee 37938 (the “Residence”). I acquired title to this residential

property through Warranty Deed dated February 18, 1997 and recorded

February 24, 1997 in the Office of the Knox County Register of Deeds at deed

book 2241, page 88. A copy of this Deed is attached as Exhibit 1.

3. The rear of my Residence adjoins the property of the Plaintiff. Plaintiff

claims in this suit that my Residence as shown in the plat of record in the

1

The Agreed Order of Substitution entered on May 18, 2011 actually states: “that Leonard Lamb,

the named personal representative of the deceased Plaintiff, and Steve Lamb, heir of the deceased Plaintiff

be and the same are substituted as parties Plaintiff in this cause.”

2

For simplicity, our references in this Opinion to Plaintiff refer either to Ms. Lamb or to Ms. Lamb’s

estate, as appropriate to the context of the sentence.

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office of Register of Deeds for Knox County “overlaps and encroaches on

Plaintiff’s boundary.”

4. On May 17, 1997, I was at the rear portion of my Residence cutting trees.

Two other persons were with me, whose names are John Joyner and Steve

Doyle.

5. On the above date of May 17, 1997, I became aware of a man yelling and

indeed, screaming at me. He was close to the boundary line of my Residence,

but just on the other side of a small stream which runs along a good portion of

the boundary line.

6. I attempted to calm the man so that we could discuss whatever problem was

causing him to be so upset. He informed [sic] that he was Red Lamb, the son

of the owner of the land bordering my Residence. He further asserted quite

angrily that my Residence boundary lines encroached on the property of his

family.

7. I attempted to discuss the issue with this man, but his anger was such that

it was difficult to have a reasonable conversation. At one point, I thought that

he was going to assault me and I cautioned him that I would not allow that. I

further learned during the course of this discussion that this man had removed

pins placed in the boundary line as determined by the surveyor who platted the

subdivision in which my Residence is located.

8. This man was too angry to allow for much in the way of rational discussion.

However, he was quite clear in asserting his position that my Residence

property line as shown in the recorded plat encroached on Plaintiff’s property.

***

11. I took possession of my Residence property upon delivery to me of an

executed warranty deed on February 18, 1997. I have openly and continuously

maintained possession of this Residence property from and after that date.

12. My actions in occupying and possessing the Residence property included

cutting trees as recited in paragraph 4 above. I also placed boundary line

markers along the boundary of the property as described in my deed and the

related recorded plat. I ran a string along this boundary line, with the string

tied to the boundary markers. I also installed metal tee posts on the boundary

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line, with affixed insulated wire constituting the above-ground part of an

underground pet fence.

***

20. The statements made by me above with respect to Plaintiff’s property

includes that small portion of property constituting approximately 0.02 of an

acre, which is here in dispute. Put another way, I have not excavated, built,

buried pipe, pushed vast amount of dirt, filled with excess undercut dirt, placed

drainage pipes, dumped backfilled dirt, debris and refuse, on even that part of

my Residence property which Plaintiff claims and is here in dispute.

21. Plaintiff asserts in Section 15 of the Amended Complaint that I have

“installed fencing, electronic wiring and devices on Plaintiff’s property

without Plaintiff’s permission.” I have not placed any fencing, electronic

wiring and devices on Plaintiff’s property.

22. Upon acquiring the Residence property, I ran a string along the property

line, affixed to the boundary markers. The boundary markers with affixed

string were placed on the property line as identified in my deed and the related

subdivision plat recorded of record in the office of the Register of Deeds for

Knox County, Tennessee.

23. I have now installed metal tee posts in the rear of my Residence, with a

single insulated wire alone [sic] the top of the poles. This is the above-ground

part of an underground pet fence. I placed this pet fence inside my Residence

boundary line.

In response to Defendant’s request for admissions, Plaintiff stated, in pertinent part:

4. On May 17, 1997, Defendant was at the rear portion of his Residence

cutting trees.

RESPONSE:

Denied that Defendant Ernest L. Joyner was cutting trees and brush just at the

rear of his residence, and that Defendant Ernest L. Joyner had actually moved

to the rear of his property several hundred feet and crossed his property

boundary onto Plaintiff’s land and was cutting Plaintiff’s tree(s).

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5. Defendant was accompanied by two other persons while cutting trees as

described in the next above Admission Request.

RESPONSE:

Denied. Plaintiff, after reasonable inquiry, is not able to recall any other

persons being present at the meeting of May 17, 1997, except the Defendant

Ernest L. Joyner, my father, Leonard C. Lamb, Jr., who was also known as

“Red Lamb,” and myself, Leonard C. Lamb, III.

6. On this date of May 17, 1997, Leonard C. Lamb, Jr., also known as Red

Lamb (hereafter called “Red Lamb”), observed the Defendant cutting trees

near the boundary line of his Residence.

RESPONSE:

Denied. Plaintiff with his father, Leonard C. Lamb, Jr., who was also known

as “Red Lamb,” observed the Defendant Ernest L. Joyner cutting tree(s) on the

Lamb side of the common boundary by the Defendant Ernest L. Joyner.

7. On this date of May 17, 1997, Red Lamb became agitated over the fact of

Defendant cutting trees near the boundary line of his Residence.

RESPONSE:

Admitted. Leonard C. Lamb, Jr., (now deceased) was agitated by Defendant

Ernest L. Joyner cutting tree(s) on the Lamb property and demanded that the

Defendant Ernest L. Joyner stop cutting tree(s) on the Lamb property and that

Defendant Ernest L. Joyner remain on his side of the property boundary

pointed out by Leonard C. Lamb, Jr.

8. Red Lamb asserted to Defendant that he must stop cutting trees.

RESPONSE:

Admitted. Leonard C. Lamb, Jr., (now deceased) asserted that the Defendant

Ernest L. Joyner stop cutting tree(s) on the Lamb property the [sic] demanded

that the Defendant Ernest L. Joyner remain on his (Joyner) side of the property

boundary pointed out by Leonard C. Lamb, Jr.

9. Red Lamb further asserted at the time of this discussion that Defendant’s

Residence boundary lines encroached on Red Lamb’s property.

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RESPONSE:

Admitted. On May 17, 1997, a discussion ensued between Leonard C. Lamb,

Jr., a/k/a “Red Lamb,” (now deceased) and the Defendant Ernest L. Joyner

during which Leonard C. Lamb, Jr., made the point that Leonard C. Lamb, Jr.,

had delivered the wooden engineering stakes located on the Lamb farm back

to the land surveyor for the developer of Belle Air Plantation subdivision and

had shown the land surveyor where the monuments for the Lamb farm and the

Zuber farm were located to prevent an encroachment and overlap of boundary

lines.

10. Red Lamb also informed Defendant at the time of this discussion that he

had removed pins placed in the Residence boundary line as determined by the

surveyor who platted the subdivision in which the Residence is located.

RESPONSE:

Denied. Leonard C. Lamb, Jr. did not acknowledged [sic] or removed [sic]

any “set” land surveying monuments for the three (3) boundary lines laid out

by the land surveyor for the developer of Belle Air Plantation Subdivision

(Zuber Farm).

11. Red Lamb, now deceased, was the husband of Mary Lou Lamb, the

original Plaintiff in this cause.

RESPONSE:

Admitted.

12. Red Lamb was accompanied by Leonard C. Lamb, III, also known as

Buddy Lamb, at the time of this encounter on May 17, 1997.

RESPONSE:

Admitted.

13. Defendant took possession of his Residence property upon delivery to

Defendant of an executed warranty deed on February 18, 1997.

RESPONSE:

Denied. The Defendant Ernest L. Joyner stated that he bought the vacant lot

from the Developer; and further stated that he built the home on or about ten

(10) years prior to his deposition on 10/31/2012. Therefore, there was not a

residence on the vacant lot when purchased.

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Admitted. That the aforesaid described warranty deed granted possession to

the Defendant Ernest L. Joyner.

14. Defendant has openly and continuously maintained possession of this

Residence property from and after that date.

RESPONSE:

Denied.

15. Defendant placed boundary line markers along the boundary of the

Residence property as described in Defendant’s deed and the related recorded

plat.

RESPONSE:

Admitted in part and Denied in part. Defendant Ernest L. Joyner hired land

surveyor Christopher L. Rudd to set iron pins using the erroneous recorded plat

in Map Cabinet N, Slide 201-B in the Register’s office of Knox County,

Tennessee, on or about September 8, 2005, nine (9) months after the death of

Leonard C. Lamb, Jr., without accounting for the land monuments pointed out

to the Defendant Ernest L. Joyner by Leonard C. Lamb, Jr., Deceased, on or

about May 17, 1997, at the meeting and discussion referenced in Requests 4,

5, 6, 7, 8, 9, 10, and 12.

16. Defendant also ran a string along this boundary line, with this string tied

to the boundary markers.

RESPONSE:

Admitted in part and Denied in part. Defendant Ernest L. Joyner

acknowledged his trespass on the Plaintiff’s property by setting tee posts, a

dog restraint system and accompanying wires, and string along his erroneous

boundary line based on the land survey by Christopher L. Rudd, who failed to

account for the land monuments described, identified, and pointed out by

Leonard C. Lamb, Jr., Deceased, to Defendant Ernest L. Joyner on or about

May 17, 1997, at the meeting and discussion referenced in Requests 4, 5, 6, 7,

8, 9, 10, and 12, said boundary markers being based on the erroneous plat with

three (3) different boundary lines being used in the development process of

Belle Air Plantation Subdivision, while completely ignoring the Lamb line and

ownership.

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17. Defendant also installed metal Tee posts on the boundary line; with

affixed insulated wire, constituting the above-ground part of an underground

pet fence.

RESPONSE:

Admitted in part and Denied in part. Plaintiff admits the discovery of a newly

installed electronic device on Plaintiff’s property in late 2007. Plaintiff is

unable to admit or deny the intended use of such electronic device.

Plaintiff denies that Defendant Ernest L. Joyner’s electronic device was

installed on the tee posts exclusively, and that it was further attached to

standing trees of the Plaintiff on Plaintiff’s land.

18. In addition, Defendant cut trees along the Residence property boundary

line when he was accosted by Red Lamb on may 17, 1997, as described in

paragraphs 4 through 8, above.

RESPONSE:

Admitted in part and Denied in part. See Answers to Requests No. 4, 6, 7 and

8. Plaintiff admits trees were cut on Defendant Ernest L. Joyner and on

Plaintiff’s property by Defendant Joyner.

Plaintiff denies that Leonard C. Lamb accosted the Defendant Ernest L. Joyner

on May 17, 1997, but approached the Defendant Ernest L. Joyner to discuss

the Defendant’s trespass and assure that it did not happen again, which further

trespass did not occur until after the death of Leonard C. Lamb, Jr., on January

15, 2005.

The hearing on Defendant’s renewed motion for summary judgment originally

was set for February 6, 2013. This hearing was continued, and Defendant’s renewed motion

for summary judgment was heard on February 19, 2013. After the hearing the Trial Court

entered its order on July 9, 2013 finding and holding, inter alia:

Thereupon, the Court made the following findings and conclusions:

1) January 4, 2013, Defendant Joyner filed a renewed Motion for Summary

Judgment pursuant to TRCP 54;

2) February 6, 2013 was thereafter set as the hearing date for the renewed

Motion for Summary Judgment;

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3) January 31, 2013 filing of Plaintiff’s TRCP 54.03 Responsive pleading,

three (3) weekdays before the initial scheduled hearing date;

4) TRCP 56.03 requires that any “party opposing the motion for summary

judgment must, not later that [sic] five days before the hearing, serve and file

a response . . .”;

5) Plaintiff’s TRCP 56.03 responsive pleading was filed on Thursday, January

31, 2013 at 10:38 AM, and served on Defendants’ counsel on or before

Thursday, January 31, 2013 at 11:00 AM three (3) weekdays before the first

scheduled hearing date of February 6, 2013, exclusive of Saturday and Sunday;

***

8) Defendant counsel stated that there was an agreement now disputed by

Plaintiff, between counsel to not waive the five (5) day response rule

requirement of TRCP 56.03 based on the February 6, 2013 hearing date;

9) The hearing date was twice re-scheduled to February 12, and again to

February 19, 2013 at 9:30 AM; and the actual hearing date for the renewed

Motion for Summary Judgment was February 19, 2013;

10) The number of days that expired from the filing of Plaintiff’s TRCP 56.03

response to the hearing date was eighteen (18) days without any further orders

of the Court;

***

12) Defendant Joyner is entitled to summary judgment as a result of the

nonmovant’s untimely response to Defendant Joyner’s renewed motion for

summary judgment pursuant to TRCP 56.03.

The Trial Court made the judgment final pursuant to Tenn. R. Civ. P. 54.02 as to Defendant.

Plaintiff appeals the grant of summary judgment to Defendant.

Discussion

Although not stated exactly as such, Plaintiff raises two issues on appeal: 1)

whether the Trial Court erred in finding Plaintiff’s response to Defendant’s renewed motion

for summary judgment was filed untimely; and, 2) whether the Trial Court erred in granting

summary judgment to Defendant.

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We first consider whether the Trial Court erred in finding Plaintiff’s response

to Defendant’s renewed motion for summary judgment was filed untimely. Our review is

de novo upon the record, accompanied by a presumption of correctness of the findings of fact

of the trial court, unless the preponderance of the evidence is otherwise. Tenn. R. App. P.

13(d); Bogan v. Bogan, 60 S.W.3d 721, 727 (Tenn. 2001). A trial court’s conclusions of law

are subject to a de novo review with no presumption of correctness. S. Constructors, Inc. v.

Loudon County Bd. of Educ., 58 S.W.3d 706, 710 (Tenn. 2001).

Defendant’s renewed motion for summary judgment was set initially for

hearing on February 6, 2013. The hearing was re-set twice for different reasons. Defendant

alleged that the parties’ attorneys had an agreement that the hearing could be re-scheduled

from February 6, 2013 to another date, but only as long as the allowed response time was

calculated as if the hearing were held on the originally scheduled date. Plaintiff disputed the

assertion that the parties had such an agreement regarding the response date.

The Trial Court held a hearing and heard evidence on the issue of whether or

not the parties had an agreement with regard to the response time. The Trial Court was

presented with the unpalatable task of making a decision in a “he said, she said,” type of

situation between two attorneys. In making this determination, the Trial Court was forced

to make credibility determinations. We give a trial court’s credibility determinations great

weight on appeal. Hughes v. Metro. Gov’t of Nashville and Davidson County, 340 S.W.3d

352, 360 (Tenn. 2011).

The Trial Court found that there was an agreement as argued by Defendant, and

thus, that Plaintiff’s response filed less than five days prior to the originally scheduled

hearing on Defendant’s renewed motion for summary judgment, yet again, was not filed

timely. The evidence in the record on appeal does not preponderate against these findings,

and we, therefore, find no error in the Trial Court’s decision not to consider Plaintiff’s

untimely response.

This determination, however, does not end the inquiry. The Trial Court found

and held that Defendant was “entitled to summary judgment as a result of [Plaintiff’s]

untimely response to Defendant Joyner’s renewed motion for summary judgment pursuant

to TRCP 56.03.” In pertinent part, Tenn. R. Civ. P. 56.06 provides:

When a motion for summary judgment is made and supported as provided in

this rule, an adverse party may not rest upon the mere allegations or denials of

the adverse party’s pleading, but his or her response, by affidavits or as

otherwise provided in this rule, must set forth specific facts showing that there

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is a genuine issue for trial. If the adverse party does not so respond, summary

judgment, if appropriate, shall be entered against the adverse party.

Tenn. R. Civ. P. 56.06.

We find no error in the Trial Court’s determination that Plaintiff’s untimely

response to Defendant’s renewed motion for summary judgment would not be considered.

Rule 56.06, however, does not provide that a failure to respond properly automatically

entitles the movant to summary judgment. Rather, Rule 56.06 provides that “[i]f the adverse

party does not so respond, summary judgment, if appropriate, shall be entered against the

adverse party.” Tenn. R. Civ. P. 56.06 (emphasis added). We, thus, must consider whether

summary judgment was appropriate, which leads to consideration of the second issue raised

by Plaintiff, whether the Trial Court erred in granting summary judgment to Defendant

This suit was filed prior to July 2, 2011. As such, we apply the standard of

review as reiterated by our Supreme Court as follows:

The scope of review of a grant of summary judgment is well

established. Because our inquiry involves a question of law, no presumption

of correctness attaches to the judgment, and our task is to review the record to

determine whether the requirements of Rule 56 of the Tennessee Rules of Civil

Procedure have been satisfied. Hunter v. Brown, 955 S.W.2d 49, 50-51 (Tenn.

1997); Cowden v. Sovran Bank/Cent. S., 816 S.W.2d 741, 744 (Tenn. 1991).

A summary judgment may be granted only when there is no genuine

issue of material fact and the moving party is entitled to judgment as a matter

of law. Tenn. R. Civ. P. 56.04; Byrd v. Hall, 847 S.W.2d 208, 214 (Tenn.

1993). The party seeking the summary judgment has the ultimate burden of

persuasion “that there are no disputed, material facts creating a genuine issue

for trial . . . and that he is entitled to judgment as a matter of law.” Id. at 215.

If that motion is properly supported, the burden to establish a genuine issue of

material fact shifts to the non-moving party. In order to shift the burden, the

movant must either affirmatively negate an essential element of the

nonmovant’s claim or demonstrate that the nonmoving party cannot establish

an essential element of his case. Id. at 215 n.5; Hannan v. Alltel Publ’g Co.,

270 S.W.3d 1, 8-9 (Tenn. 2008). “[C]onclusory assertion[s]” are not sufficient

to shift the burden to the non-moving party. Byrd, 847 S.W.2d at 215; see also

Blanchard v. Kellum, 975 S.W.2d 522, 525 (Tenn. 1998). Our state does not

apply the federal standard for summary judgment. The standard established

in McCarley v. West Quality Food Service, 960 S.W.2d 585, 588 (Tenn. 1998),

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sets out, in the words of one authority, “a reasonable, predictable summary

judgment jurisprudence for our state.” Judy M. Cornett, The Legacy of Byrd

v. Hall: Gossiping About Summary Judgment in Tennessee, 69 Tenn. L. Rev.

175, 220 (2001).

Courts must view the evidence and all reasonable inferences therefrom

in the light most favorable to the non-moving party. Robinson v. Omer, 952

S.W.2d 423, 426 (Tenn. 1997). A grant of summary judgment is appropriate

only when the facts and the reasonable inferences from those facts would

permit a reasonable person to reach only one conclusion. Staples v. CBL &

Assocs., Inc., 15 S.W.3d 83, 89 (Tenn. 2000). In making that assessment, this

Court must discard all countervailing evidence. Byrd, 847 S.W.2d at 210-11.

Recently, this Court confirmed these principles in Hannan.

Giggers v. Memphis Housing Authority, 277 S.W.3d 359, 363-64 (Tenn. 2009).

Defendant moved for summary judgment claiming that he adversely possessed

the real property at issue in this case pursuant to Tenn. Code Ann. § 28-2-101, which, in

pertinent part, vests title in an adverse possessor who holds the real property by “conveyance,

devise, grant, or other assurance of title, purporting to convey an estate in fee, . . .” after

seven years of adverse possession. Tenn. Code Ann. § 28-2-101 (2000).

As our Supreme Court has instructed:

In order to establish adverse possession under [the common law] 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.

Hightower v. Pendergrass, 662 S.W.2d 932, 935 n.2 (Tenn. 1983); cf. Menefee

v. Davidson County, 195 Tenn. 547, 260 S.W.2d 283, 285 (Tenn. 1953).

Adverse possession is, of course, a question of fact. Wilson v. Price, 195

S.W.3d 661, 666 (Tenn. Ct. App. 2005). The burden of proof is on the

individual claiming ownership by adverse possession and the quality of the

evidence must be clear and convincing. O’Brien v. Waggoner, 20 Tenn. App.

145, 96 S.W.2d 170, 176 (Tenn. Ct. App. 1936). The actual owner must either

have knowledge of the adverse possession, or the possession must be so open

and notorious to imply a presumption of that fact. Kirkman v. Brown, 93

Tenn. 476, 27 S.W. 709, 710 (Tenn. 1894).

Cumulus Broad., Inc. v. Shim, 226 S.W.3d 366, 377 (Tenn. 2007). “[T]he law is well settled

that inclosure is unnecessary to establish actual possession where such inclosure is

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impracticable, but possession may be established by such use and occupation as the land,

from its situation, nature, and character, admits.” Bensdorff v. Uihlein, 177 S.W. 481, 482

(Tenn. 1915).

In support of his assertion that he met the requirements for proving adverse

possession, Defendant relies heavily upon the conversation that occurred on May 17, 1997,

and the fact that Plaintiff admitted in responses to Defendant’s requests for admissions that

this conversation occurred. A careful and thorough review of Plaintiff’s responses, however,

shows that while Plaintiff admitted that a conversation occurred, this admission does not

support the assertion made by Defendant.

What Plaintiff admitted is that a conversation occurred when Leonard C. Lamb,

Jr. discovered Defendant allegedly trespassing upon land owned by Plaintiff and cutting

some trees. Plaintiff’s response to Defendant’s requests for admissions shows that Leonard

C. Lamb, Jr. informed Defendant of the trespass and requested that Defendant cease

trespassing. Plaintiff’s responses also state that “further trespass did not occur until after the

death of Leonard C. Lamb, Jr., on January 15, 2005.” The May 17, 1997 conversation as

described in Defendant’s affidavit and Plaintiff’s responses to Defendant’s request for

admissions hardly shows exclusive possession of the disputed property by Defendant even

on May 17, 1997 as both Mr. Lamb and Defendant were on the property claiming ownership.

A single instance of trespass and cutting a tree or a few trees is insufficient by

itself to prove Defendant’s adverse possession claim. As this Court has explained:

“Occasional use of land through cultivation, cutting grass or timber or the grazing of stock

is not sufficient to establish adverse possession.” Cusick v. Cutshaw, 237 S.W.2d 563, 567

(Tenn. Ct. App. 1948). See also Quarles v. Smith, No. W2009-00514-COA-R3-CV, 2010

Tenn. App. LEXIS 136, at *13 (Tenn. Ct. App. Feb. 24, 2010) (quoting other cases wherein

it was stated: “[o]ccasional grazing and cultivation are insufficient to establish adverse

possession[,]” and “occasional use of land by cutting trees, no matter how long, will not

alone constitute adverse possession.” (citations omitted) (emphasis in original)), no appl.

perm. appeal filed.

In his affidavit in support of his renewed motion for summary judgment,

Defendant also claims that he placed boundary line markers and ran a string along the

boundary line when he acquired his property. Defendant, however, does not state exactly

where he placed these boundary markers, whether these markers were placed in the area

Defendant claims to have adversely possessed, what type of markers these were, how visible

they were, how long they were in place, and whether Plaintiff did, or should have had, notice

of the existence of these markers. In short, Defendant’s bare assertion that he placed

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boundary markers with string also is insufficient, without further proof, to prove adverse

possession.

Finally, Defendant asserts that he installed metal tee posts with insulated wire

as part of an underground pet fence. Defendant, however, does not provide any time period

whatsoever as to when he installed these metal tee posts. In fact, in his affidavit, he states

that he “now installed metal tee posts . . . ,” which, when read in a light most favorable to the

non-moving party, as we must at this summary judgment stage, implies that the metal tee

posts were placed recently, not seven years before inception of this suit. Furthermore, as

with the assertions about the boundary markers and string, Defendant provides no further

details about the metal tee posts that would show that placement of them was sufficient to

put Plaintiff on notice that Defendant was adversely possessing the property at issue.

Summary judgment was not appropriate in this case because “the facts and the

reasonable inferences from those facts” do not permit “a reasonable person to reach only one

conclusion.” Giggers, 277 S.W.3d at 364. Defendant has not shown at this summary

judgment stage that he is entitled to judgment as a matter of law as he has not established

every required element of adverse possession. Defendant has not shown that the acts he

alleges were sufficient given the “situation, nature, and character, . . .” of the real property

at issue. Bensdorff, 177 S.W. at 482. Nor has Defendant shown by clear and convincing

evidence that he adversely possessed the property at issue for the required time period, that

Plaintiff had knowledge of the alleged possession, or should have had such knowledge, and

that Defendant’s alleged possession was “exclusive, actual, adverse, continuous, open, and

notorious . . . .” Cumulus Broad., Inc., 226 S.W.3d at 377. Given all this, we find and hold

that Defendant was not entitled to summary judgment. We, therefore, reverse the grant of

summary judgment to Defendant and remand this case for further proceedings.

Conclusion

The judgment of the Trial Court is vacated, and this cause is remanded to the

Trial Court for further proceedings consistent with this Opinion and for collection of the

costs below. The costs on appeal are assessed against the appellee, Ernest L. Joyner.

_________________________________

D. MICHAEL SWINEY, JUDGE

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