Cumberland Advisory Group, LLC v. Martha Arnita Lee

03/31/2021

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

February 4, 2021 Session

CUMBERLAND ADVISORY GROUP, LLC V. MARTHA ARNITA LEE ET

AL.

Appeal from the Chancery Court for Davidson County

No. 16-635-II Anne C. Martin, Chancellor

No. M2019-02072-COA-R3-CV

This appeal arises from a boundary dispute in a residential neighborhood in Nashville.

After a bench trial, the court determined the boundary between the plaintiff’s and the

defendants’ properties was depicted on a survey prepared by the plaintiff’s surveyor. The

dispositive issue on appeal is whether the trial court erred in determining the location of

the boundary. Having concluded that the evidence preponderates in favor of the trial court’s

decision, we affirm. Additionally, we have determined that the plaintiff is entitled to

recover the reasonable and necessary expenses and attorney’s fees incurred as the result of

a frivolous appeal in accordance with Tenn. Code Ann. § 27-1-122. Therefore, we remand

for the trial court to make the appropriate award.

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

Affirmed and Remanded

FRANK G. CLEMENT JR., P.J., M.S., delivered the opinion of the Court, in which ANDY D.

BENNETT and ARNOLD B. GOLDIN, JJ., joined.

Martha Arnita Lee and Bennie Lee, Nashville, Tennessee, Pro se.

Donald Capparella and Kimberly MacDonald, Nashville, Tennessee, for the appellee,

Cumberland Advisory Group, LLC.

OPINION

In 2014, the plaintiff, Cumberland Advisory Group, LLC (“CAG”), purchased

residential property located at 1061 Second Avenue South in Nashville, Tennessee (“the

CAG property”). The defendants, Martha Arnita Lee and Bennie Lee, owned the property

next door, 1059 Second Avenue South (“the Lee property”).1

When CAG purchased the property, it decided to demolish the existing structure, a

house, and build a new one. CAG hired Steve Matthews, a surveyor with Dale &

Associates, to conduct a survey. Mr. Matthews examined the deeds to the CAG and Lee

properties and concluded that the CAG property contained 30 feet of road frontage on

Second Avenue South and the Lee property contained 43 feet. Mr. Matthews further

determined that the boundary between the CAG and Lee properties corresponded with a

chain link fence that ran between them. After receiving the survey, CAG finalized its plans

for the new structure and proceeded with demolition.

The company CAG hired to demolish the home damaged the chain link fence in the

process. According to CAG, two panels of the fence and two fence posts remained, one on

each end of the fence. The demolition company installed a black chain link fence along

these two fence posts as a temporary fix.

The previous home on the CAG property sat nearly flush with the disputed boundary

line. CAG sought to build the new structure with an eight-foot setback, which would move

the structure further away from the Lee property. However, according to Glen Dukes, the

sole owner of CAG, there was a maximum three-foot setback requirement. Therefore, CAG

applied for a variance with the Metropolitan Nashville Board of Zoning Appeals (“BZA”).

On October 12, 2015, the BZA met to discuss CAG’s request. Mr. Lee attended the meeting

to dispute the boundary between the two properties, contending his property contained 45

feet of road frontage, not 43 feet as found by CAG’s surveyor, and argued the fence should

be moved closer to CAG’s planned structure. Notwithstanding Mr. Lee’s objection, CAG

received a variance from the BZA.

Thereafter, Mr. Dukes sent a letter to the Lees detailing what the surveyor found. In

response, Mr. Lee constructed a wrought iron fence along what Mr. Lee claimed was the

boundary line. The wrought iron fence blocked CAG’s contractors from accessing a

temporary power pole, and consequently, delayed construction.

On June 17, 2016, CAG commenced this action against the Lees with the filing of

its complaint, which was amended shortly thereafter. In its amended complaint, CAG

requested that the trial court declare that the boundary between the two properties was the

boundary marked by the Matthews survey, giving CAG 30 feet of road frontage and the

Lees 43 feet. CAG also asserted claims for trespass, conversion, and, in the alternative,

adverse possession. CAG requested that the court award it up to $150,000 in damages for

loss of use, order the Lees to remove the wrought iron fence, and issue an injunction

1

Mrs. Lee purchased the Lee property in 2000. In 2014, after this action had been commenced,

Mrs. Lee quitclaimed the property to Mr. Lee and herself as tenants by the entirety.

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preventing the Lees from placing any additional obstacles on CAG’s property or interfering

with its use of the disputed area.

The Lees filed an answer and countercomplaint alleging the true boundary gave

them 45 feet of road frontage, and CAG was trespassing on their property. The Lees

claimed they were entitled to damages as a result, the amount of which was to be

determined at the trial.

As requested by CAG, the court issued a temporary injunction to prevent the Lees

from interfering with the disputed area, the specifics of which were clarified in an order

entered on April 8, 2019. Pursuant to the clarified injunction, which was based in part on

two surveys, one performed by CAG’s surveyor and the other performed by the Lees’

surveyor, the court determined that the area in dispute was a 2.5-foot-wide strip between

the properties. The court’s order provided that the Lees were to “[i]mmediately remove

any and all objects within the disputed area,” which included wooden stakes, surveyor

flags, and fencing, and the court ordered them to refrain from entering the disputed area.

Shortly thereafter, CAG filed a motion for contempt alleging the Lees failed to abide

by the court’s April 8, 2019 order. Following an evidentiary hearing, the court held the

Lees in civil contempt, basing its determination on the Lees’ testimony that they

understood the April 8 order but chose not to comply with it. On July 26, upon CAG’s

motion for sanctions, the court ordered the Lees to pay CAG its attorney’s fees in the

amount of $1,787.50. The Lees filed a motion to alter or amend the judgment in accordance

with Rule 59.04 of the Tennessee Rules of Civil Procedure, and on August 28, the trial

court denied the motion.

The case was tried over two days in November 2019.2 A number of witnesses

testified at the trial on behalf of CAG. Its witnesses included its owner, Mr. Dukes; its

surveyor, Mr. Matthews; the former owner of the CAG property, Jackie Cox; and the

former tenant, John Stallworth. It also introduced into evidence the warranty deed for the

CAG property and Mr. Matthews’ survey. Mr. Matthews testified that the boundary

between the CAG and Lee properties gave the Lees 43 feet of road frontage and

2

In October 2019, the trial court granted the Lees’ attorney leave to withdraw, but the trial court

did not grant the attorney’s request to continue the trial. In denying that request, the court reasoned as

follows:

The Lees have had four sets of attorneys in this case, each set moving to

withdraw after the relationship deteriorated to a point that it could no

longer continue. The case, which was filed on June 17, 2016, has been

reset at least three times, most recently on February 11, 2019. The day of

trial, the parties announced a tentative settlement, only to be repudiated by

the Lees. This case needs to be tried and the dispute resolved.

Thereafter, the Lees proceeded to trial pro se.

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corresponded with the chain link fence that had been there previously. The former owner

of the CAG property, Jackie Cox, and the former tenant, John Stallworth, testified that the

chain link fence had been there since 1987 and was treated as the boundary.

For their part, the Lees relied on Mr. Lee’s testimony and a photocopy of a

microfiche labeled “Property Map and Record System—Metropolitan Government of

Nashville and Davidson County.” To support their claim that the Lee property contained

45 feet of road frontage, Mr. Lee referenced the microfiche document, stating that he

obtained it from public records in 1999, just prior to Mrs. Lee purchasing the Lee property.

It reflected a 1956 entry describing 1059 Second Avenue South (the Lee property) as being

45 feet by 135 feet. Thus, Mr. Lee claimed his property contained 45 feet of road frontage.

The court entered a final order on November 27, 2019, and ruled as follows:

The Lees did not present evidence sufficient to cause the Court to question

the accuracy of Mr. Matthews’ survey. Accordingly, the Court finds the

property line between the CAG and Lee Properties to be consistent with the

Matthews survey, which is based on the property descriptions in the parties’

respective deeds. CAG is entitled to the injunctive relief it seeks in this

regard, i.e., that the Lees be permanently enjoined from coming onto its

property.

As for CAG’s alternative claim based on adverse possession, the court determined CAG

proved by clear and convincing evidence that CAG and its predecessors in interest

adversely possessed the property up to the chain link fence for the requisite period.

Having ruled in CAG’s favor on the boundary line and ownership of the disputed

property, the court also found that the Lees were liable for trespass and conversion and

awarded CAG damages in the amount of $21,043.13.

This appeal followed.

STANDARD OF REVIEW

“In all actions tried upon the facts without a jury, the court shall find the facts

specially and shall state separately its conclusions of law and direct the entry of the

appropriate judgment.” Tenn. R. Civ. P. 52.01. If the trial court makes the required findings

of fact, appellate courts review the trial court’s factual findings de novo upon the record,

accompanied by a presumption of the correctness of the findings, unless the preponderance

of the evidence is otherwise. Kelly v. Kelly, 445 S.W.3d 685, 692 (Tenn. 2014) (citing

Tenn. R. App. P. 13(d)). “For the evidence to preponderate against a trial court’s finding

of fact, it must support another finding of fact with greater convincing effect.” State ex rel.

Flowers v. Tenn. Trucking Ass’n Self Ins. Grp. Trust, 209 S.W.3d 595, 599 (Tenn. Ct. App.

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2006). Our review of a trial court’s determinations on issues of law is de novo, without any

presumption of correctness. Lind v. Beaman Dodge, Inc., 356 S.W.3d 889, 895 (Tenn.

2011).

ANALYSIS

The brief filed by the Lees, who are pro se on appeal, profoundly fails to comply

with the requirements of Rule 27 of the Tennessee Rules of Appellate Procedure. The brief

includes sections labeled as the statement of the issues, statement of the case, and statement

of facts, but they primarily consist of overlapping, stream-of-consciousness arguments that

fail to reference or cite the appellate record. Moreover, the brief is so deficient that it is

difficult to discern what issues the Lees intended to raise.3 Nevertheless, it is apparent that

they generally contend the trial court erred in determining that the boundary between the

CAG and Lee properties was depicted on the Matthews survey, giving CAG 30 feet of road

frontage and the Lees 43 feet as well as the ruling that CAG adversely possessed the

disputed property up to the chain link fence for the requisite period.4

For its issues, CAG contends the trial court correctly determined the boundary line

as giving CAG 30 feet of frontage and the Lees 43 feet of frontage and correctly found the

Lees liable for damages for trespass, construction delays, and loss of use of the property.

CAG also contends the Lees have filed a frivolous appeal, rendering them liable for

damages to CAG in the form of attorney’s fees and costs on appeal.

I. THE BOUNDARY LINE

“When determining a boundary line that is in dispute, the court must look first to

the natural objects or landmarks on the property, then to the artificial objects or landmarks

on the property, then to the boundary lines of adjacent pieces of property, and finally to

courses and distances contained in documents relevant to the disputed property.” Mix v.

Miller, 27 S.W.3d 508, 513 (Tenn. Ct. App. 1999). This Court explained in Hong v. Foust:

3

The Lees are “entitled to fair and equal treatment by the courts” as pro se litigants. Hessmer v.

Hessmer, 138 S.W.3d 901, 903 (Tenn. Ct. App. 2003). However, they “are not . . . entitled to shift the

burden of litigating their case to the courts.” Whitaker v. Whirlpool Corp., 32 S.W.3d 222, 227 (Tenn. Ct.

App. 2000).

4

The Lees also contend the trial court erred in holding them in contempt for willfully disobeying

the court’s April 8, 2019 order, the injunction. For example, they state in their brief, “The Lee’s are not

guilty of contempt and request civil penalty be remove[] and charges dismissed. The Lee’s warranty deed

through surveyor and Tim Callahan guarantee the lot[s] is 45x135 and no encroachment or adverse

possession.” However, because their arguments pertain to the merits of the court’s decision as to the

boundary line and adverse possession rulings instead of contempt, and because the brief fails to cite to the

record evidencing the allegedly erroneous action, their challenge of the alleged error, the resultant prejudice,

or each determinative fact, they have failed to comply with Tenn. Ct. App. R. 6(a). Resultantly, the issue is

waived. See Tenn. Ct. App. R. 6(b).

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The construction of [a] deed and other instruments and documents and their

legal effect as to boundaries is a question of law. What boundaries the grant

or deed refers to is a question of law; where those boundaries are on the face

of the earth is a question of fact. If, therefore, the evidence concerning the

location of the true boundary line between adjacent landowners is

conflicting, that issue is one of fact unless the legal construction of

the deed or grant is such that the boundary is determined as a matter of law.

No. E2011-00138-COA-R3-CV, 2012 WL 388448, at *5 (Tenn. Ct. App. Feb. 8, 2012)

(quoting 12 Am. Jur.2d Boundaries § 121 (1997)).

The deed to the CAG property states that it contains 30 feet of road frontage on

Second Avenue South (formerly known as Market Street):

Being the southerly 14 feet of Lot No. 21, and the northerly 16 feet of Lot

No. 22 in Isaac Paul’s Elysian Grove Plan of Lots in Nashville, Tennessee,

fronting together 30 feet on the westerly side of Market Street and running

back westerly between parallel lines 136 feet, more or less, to an alley.

However, the deed to the Lees’ property is less clear; in one paragraph, it states the

Lee property contains 42 feet of road frontage, and in another, it states the property contains

43 feet:

Being the southerly 7 feet of lot No. 20 and the northerly 35 feet of lot No.

21 on the Plan of Paul’s Elysian Grove Plan of Lots in South Nashville, as of

record in Plan Book 1, Page 134, Chancery Court at Nashville.

Said plans of Lots Nos. 20 and 21 front together 43 feet on the westerly side

of Second Avenue South, formerly Market Street, and run back between

parallel lines 135 feet, more or less, to an alley.

(Emphasis added).

Because this ambiguity results from the contradictory language, alone, and not from

the “ambiguous state of the extrinsic circumstances” to which the words refer, the

ambiguity is patent rather than latent. Ward v. Berry & Assocs., Inc., 614 S.W.2d 372, 374

(Tenn. Ct. App. 1981). Consequently, the court cannot rely on parol evidence to resolve

the ambiguity and must focus on rules of construction. Id.

The trial court determined that the discrepancy in road frontage resulted from a

scrivener’s error, and the correct measurement was 43 feet of road frontage as depicted on

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the Matthews survey. The trial court also noted that the Lees’ deed did not indicate that the

Lee property contained 45 feet of road frontage, as the Lees claimed.

The court’s determination is supported by the testimony of Mr. Matthews. He

examined the deeds in the Lees’ chain of title and discovered that previous deeds described

the boundary as the southerly 7 feet of Lot 20 and the northerly 36 feet of Lot 21, which

equals 43 feet of road frontage. Thus, in Mr. Matthews’ opinion, the second paragraph in

the Lees’ deed describing the property as having 43 feet of road frontage was likely correct.

Moreover, Mr. Matthews testified that his survey, which gives the Lee property 43 feet of

road frontage, comports with artificial monuments and possession lines in the area,

including the chain link fence that, at one time, ran between the Lee and CAG properties.

He also testified that, if the Lee property contained 45 feet of road frontage, as Mr. Lee

claimed, it would move all property lines on the block two feet to the south and would

place some of the houses on the block out of code due to set-back requirements.

Because Mr. Matthews’ survey comports with the depictions in the relevant deeds,

the artificial monuments and possession lines in the area, and the boundary lines of

adjacent properties, we agree with the trial court that the evidence preponderates in favor

of a finding that the boundary was correctly depicted on Mr. Matthews’ survey. Therefore,

we affirm the trial court’s decision.

II. FRIVOLOUS APPEAL

CAG contends it is entitled to its costs and attorney’s fees incurred in defending this

appeal pursuant to Tenn. Code Ann. § 27-1-122.

“Parties should not be forced to bear the cost and vexation of baseless

appeals.” Young v. Barrow, 130 S.W.3d 59, 66 (Tenn. Ct. App. 2003). As such, “the

Tennessee General Assembly enacted Tenn. Code Ann. § 27-1-122 to enable appellate

courts to award damages against parties whose appeals are frivolous or are brought solely

for the purpose of delay.” Id. The decision to award these damages is a discretionary

decision. Id. at 66–67 (citing Banks v. St. Francis Hosp., 697 S.W.2d 340, 343 (Tenn.

1985)).

Tennessee Code Annotated § 27-1-122 provides:

When it appears to any reviewing court that the appeal from any court of

record was frivolous or taken solely for delay, the court may, either upon

motion of a party or of its own motion, award just damages against the

appellant, which may include, but need not be limited to, costs, interest on

the judgment, and expenses incurred by the appellee as a result of the appeal.

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“A frivolous appeal is one that is devoid of merit, Combustion Eng’g, Inc. v.

Kennedy, 562 S.W.2d 202, 205 (Tenn. 1978), or one that has no reasonable chance of

succeeding.” Young, 130 S.W.3d at 67. We have determined that this appeal is devoid of

merit and had no reasonable chance of succeeding. The factors that lead us to this

conclusion include the fact that the fence was on the property line when Mrs. Lee bought

the house where it remained until CAG purchased the property next door; the Lees’ deed

did not describe the frontage as 45 feet, only 42 or 43; and the former owner and former

tenant of the CAG property testified that the fence was the property line. Further, the Lees

retained four different attorneys to represent them in the trial court proceedings. Each of

them withdrew and the last one withdrew after the Lees admitted they intentionally violated

the injunction. Moreover, the Lees pursued this appeal relying on a brief that profoundly

failed to comply with the requirements of Rule 27 of the Tennessee Rules of Appellate

Procedure and Rule 6 of the Rules of the Court of Appeals of Tennessee.

Therefore, exercising our discretion, CAG is entitled to recover the reasonable and

necessary costs it incurred on appeal, the amount of which the trial court shall determine

upon remand.

IN CONCLUSION

The judgment of the trial court is affirmed, and this matter is remanded for further

proceedings consistent with this opinion. Costs of appeal are assessed against Martha

Arnita Lee and Bennie Lee.

________________________________

FRANK G. CLEMENT JR., P.J., M.S.

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