Court of Appeals Opinions

Format: 03/28/2017
Format: 03/28/2017
Denise Elliott v. State of Tennessee
M2016-00392-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Commissioner Robert N. Hibbett

This appeal arises from a claim against the State by the driver of a motor vehicle who seeks damages resulting from a single-car accident. Claimant contends the accident was the proximate result of the State’s negligence in the design, construction, and maintenance of the roadway where the accident occurred for which the State is liable pursuant to Tenn. Code Ann. § 9-8-307(a)(1)(I). Following a trial, the Claims Commissioner found that Claimant failed to prove the State was negligent in the design, construction, or maintenance of the roadway; therefore, Claimant failed to prove a claim for negligence under Tenn. Code Ann. § 9-8-307(a)(1)(I). Finding the evidence does not preponderate against the Claims Commission’s findings, we affirm.

Court of Appeals 03/13/17
James William Taylor v. Tennessee Department of Correction, et al.
M2016-01350-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Chancellor Russell T. Perkins

An inmate in the custody of the Department of Correction appeals the dismissal of his petition for declaratory judgment. He claims his sentence is calculated incorrectly, and he is entitled to custodial parole and safety valve hearings. Upon motion of the Respondents, the trial court granted summary judgment dismissing the petition. We affirm.

Davidson County Court of Appeals 03/13/17
Elizabeth A. Popick v. Vanderbilt University
M2015-01271-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Thomas W. Brothers

The plaintiff filed this health care liability action against the defendant hospital after the death of her husband, alleging that his death was the result of negligent medical treatment. The jury returned a verdict in favor of the defendant. On appeal, the plaintiff argues that the trial court committed reversible error in: (1) excluding certain email messages as hearsay; (2) overruling her objections to defense counsel‟s cross-examination of a witness; (3) failing to instruct the jury to ignore statements made by defense counsel in closing argument; (4) refusing a request for a special jury instruction; and (5) declining to change the special verdict form. Discerning no reversible error, we affirm the decision of the trial court.

Davidson County Court of Appeals 03/13/17
In Re Ethan R.
W2015-01208-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Jerry Stokes

A mother, who was designated the primary residential parent of the parties’ son when she and the father divorced, filed a dependent and neglect petition in juvenile court in Tennessee when the child was hospitalized in Arkansas after ingesting some of the father’s methadone tablets. In the course of the juvenile court proceeding Father filed a petition opposing Mother’s relocation to Kentucky and seeking a change in custody. The juvenile court dismissed both petitions, and Father appealed. The circuit court held a trial de novo and denied Father’s petition. Mother appeals, contending that because she did not appeal the juvenile court’s dismissal of the dependent and neglect proceeding, the circuit court did not have subject matter jurisdiction to consider the matter further and, alternatively, that the case should have been transferred to Kentucky. Finding no error in the disposition of the case, we affirm the judgment in all respects.

Shelby County Court of Appeals 03/10/17
In Re Conservatorship of Sophia Elaine Taylor
M2016-01288-COA-R3-CV
Authoring Judge: Chief Judge D. Michael Swiney
Trial Court Judge: Judge Hamilton V. Gayden, Jr.

This appeal arises from the removal of a conservator.  The Tennessee Department of Mental Health and Substance Abuse Services (“the Department”) filed a petition in the Probate Court for Davidson County (“the Probate Court”) seeking removal of Cheryl R. Russell (“Russell”) as conservator for Sophia Elaine Taylor (“Taylor”).  Russell, Taylor’s mother, was alleged to have interfered repeatedly with Taylor’s medical treatment.  After a hearing, the Probate Court removed Russell as Taylor’s conservator and named ComCare, Inc. (“ComCare”) as temporary conservator.  Russell appeals to this Court.  Finding no abuse of discretion or other reversible error, we affirm the judgment of the Probate Court.

Davidson County Court of Appeals 03/10/17
Jamie Treadwell v. Gary Thomas Lamb
M2015-01391-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Thomas W. Graham

This appeal involves the financial aspects of a divorce, which ended a twelve-year marriage.  The trial court granted both parties a divorce, divided the marital estate, and awarded Wife rehabilitative alimony for twenty-four months, provided she actively pursued a teaching degree at Middle Tennessee State University.  Wife filed a motion to alter or amend the award of alimony to remove the education and vocation requirements.  The trial court denied the motion.  Wife filed a motion pursuant to Tennessee Rule of Civil Procedure 60.02 seeking relief from the trial court’s order dividing the marital estate due to Husband’s alleged fraudulent withdrawals from the parties’ marital stock account.  The trial court denied the motion.  On appeal, Wife takes issue with the educational and vocational requirements the trial court placed on the spousal support award and with the trial court’s division of the marital estate.  She also appeals the trial court’s denial of her Rule 60.02 motion.  We affirm the trial court’s judgment in all respects.

Franklin County Court of Appeals 03/10/17
Herbert S. Moncier v. Nina Harris, et al.
E2016-00209-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Clarence E. Pridemore, Jr.

This appeal involves a request for access to examine records under Tennessee Code Annotated section 10-7-505 in which the plaintiff sought the release of civil forfeiture documents from the Tennessee Department of Safety and Homeland Security. The trial court held that the plaintiff did not show sufficient cause for release of the sought after documents in a non-redacted format. We find that the issue has become moot owing to the legislative enactment of 2016 Tenn. Pub. Acts, Chapter 722, § 5. Accordingly, we vacate the trial court’s judgment and dismiss this case.

Knox County Court of Appeals 03/10/17
J.W. Smith, et al. v. TimberPro, Inc., et al.
W2016-00757-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Donald E. Parish

J.W. Smith d/b/a J.W. Smith Logging (“Smith”) appeals the trial court’s grant of summary judgment to Don Bush d/b/a Bush Forestry Equipment (“Bush”) and Woodland Equipment, Inc. (“Woodland”). Smith filed this lawsuit against Bush and Woodland seeking damages for breach of contract and breach of express and implied warranties. His claims arose from his purchase of an allegedly defective harvester from Woodland. The trial court granted summary judgment to Bush based on the absence of contractual privity between Smith and Bush. The trial court granted summary judgment to Woodland based on the absence of evidence that it breached any express warranties to Smith and based on a disclaimer of implied warranties included in its contract with Smith. On appeal, Smith argues that the record contains issues of disputed fact as to (1) whether Bush was a joint-seller of the harvester with Woodland, (2) whether Woodland and Bush breached express warranties to Smith, and (3) whether the disclaimer of implied warranties was part of Smith’s contract for purchase of the harvester. We agree with the trial court that the record does not contain any evidence of contractual privity between Smith and Bush and therefore affirm the trial court’s grant of summary judgment to Bush on all of Smith’s claims. We also agree that the record does not contain evidence that Woodland breached express warranties to Smith and therefore affirm the trial court’s grant of summary judgment to Woodland on Smith’s claim for breach of express warranties. We do not agree, however, that the disclaimer of implied warranties was included in Smith’s contract with Woodland for purchase of the harvester. We therefore reverse the trial court’s grant of summary judgment to Woodland on Smith’s claim for breach of implied warranties. The judgment of the trial court is affirmed in part, reversed in part, and this case is remanded for further proceedings.

Carroll County Court of Appeals 03/09/17
John Mervin et al. v. Ken Davis et al.
E2016-00508-COA-R3-CV
Authoring Judge: Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Michael S. Pemberton

This appeal arises from a dispute between neighbors regarding the construction of a sign that precipitated the exchange of threats followed by the filing of a civil warrant and criminal charges, a global settlement agreement, the alleged breach of the settlement agreement, and the commencement of this action. After Ken and Martha Davis sued John and Sharon Merwin in general sessions court on a variety of tort claims and filed criminal charges against Mr. Merwin, the parties entered into a settlement agreement pursuant to which Mr. Merwin agreed to remove the sign he erected and the Davises agreed to dismiss the civil warrant and the criminal charges. The Davises promptly dismissed the civil warrant but when the criminal case came on for hearing, the district attorney declined to dismiss the criminal charges against Mr. Merwin and the case was continued so Mr. Merwin could retain counsel. At the subsequent hearing, the criminal charges were dismissed and, in the interim, Mr. Merwin removed the sign. Thereafter, the Merwins commenced this action asserting a variety of tort claims, including a claim for malicious prosecution, and a claim for breach of contract based on the Davises’ failure to dismiss the criminal charges at the initial hearing. Upon the motion of the Davises, the trial court summarily dismissed the tort claims on the grounds of res judicata because they had been asserted in the civil warrant that was dismissed with prejudice. At the conclusion of the trial on the remaining claims, the trial court granted the Davises’ motion for a directed verdict on the breach of contract claim upon the ground it was legally impossible for the Davises to dismiss the criminal complaint and because the Merwins could not establish that the Davises breached the settlement agreement. The Merwins appeal. We affirm.

Roane County Court of Appeals 03/09/17
Henry Fletcher v. CFRA, LLC
M2016-01202-COA-R3-CV
Authoring Judge: Chief Judge D. Michael Swiney
Trial Court Judge: Judge Hamilton V. Gayden, Jr.

Henry Fletcher (“Plaintiff”) sued CFRA, LLC (“CFRA”), which owns and operates an International House of Pancakes (“IHOP”) restaurant in Antioch, Tennessee, alleging that CFRA was liable for the actions of its IHOP employee, Kenneth W. Hale, Jr. (“Hale”), in connection with an assault upon Plaintiff committed by Hale.  The Circuit Court for Davidson County (“the Trial Court”) granted summary judgment to CFRA.  Plaintiff appeals the grant of summary judgment.  We find and hold that CFRA made a properly supported motion for summary judgment, that Plaintiff failed to show that there are genuine disputed issues of material fact that would preclude summary judgment, and that CFRA was entitled to summary judgment as a matter of law.  We, therefore, affirm the grant of summary judgment to CFRA.

Davidson County Court of Appeals 03/08/17
Mark Antonio Allen v. Candy Rachelle Munn Allen
W2016-01078-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Judge Donna M. Fields

This appeal arises from the post-divorce restriction of an alternate residential parent’s parenting time. The parties divorced in 2010. By agreement, the father was designated primary residential parent of the parties’ two minor children. The original parenting plan gave the mother 160 days of unsupervised visitation per year, including time in the summers and on holidays. In 2014, the father filed a petition requesting that the trial court restrict mother’s parenting time to supervised visitation only. Father’s lawyer then approached the trial court ex parte with an affidavit of the daughter’s psychologist and requested emergency relief restricting the mother’s visitation. The trial judge signed a temporary injunction requiring the mother’s parenting time to be supervised. When the mother attempted to set aside this injunction, the trial court ordered the mother to undergo a Rule 35 evaluation. After performing his examination of the mother, the independent Rule 35 evaluator testified that the mother was capable of caring for her children without supervision. Nevertheless, the trial court entered a final order and permanent parenting plan that substantially decreased the mother’s parenting time and required it to be supervised indefinitely. The trial court also awarded the father $15,000.00 in attorney’s fees. Following a thorough review of the record, we vacate the order of the trial court restricting the mother’s parenting time, reverse the trial court’s order awarding the father attorney’s fees, remand the case to the trial court, and necessarily reinstate the parties’ original parenting plan.

Shelby County Court of Appeals 03/07/17
In Re: Estate of Madelyn Cleveland
E2016-01624-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge David R. Shults

In this probate matter, the decedent was a party to divorce proceedings in Georgia with her estranged husband at the time of her death. The decedent and her husband had executed a separation agreement as part of those proceedings, wherein they agreed that each party would individually maintain ownership of specified marital assets and execute any documents necessary to effectuate the agreement as to each asset. The decedent passed away before the respective transfers of property were made, and her personal representative filed an action seeking to enforce the terms of the settlement agreement. The trial court conducted a hearing in this matter and determined that the agreement had been rescinded by the husband, such that all jointly owned marital assets passed to him at the decedent’s death. The personal representative has appealed. We determine that the husband did not have a proper basis for rescission of the settlement agreement and that any purported rescission was ineffective. We therefore reverse the trial court’s order dismissing the petition filed by the personal representative and awarding ownership of all marital assets to the husband. We remand this matter to the trial court for further proceedings regarding enforcement of the agreement.

Unicoi County Court of Appeals 03/07/17
Tamara Reece Milton v. Randall v. Harness, Jr.
E2017-00092-COA-R10-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Frank V. Williams, III

This is an extraordinary appeal, filed pursuant to Rule 10 of the Tennessee Rules of Appellate Procedure, seeking review of the Trial Court’s ex parte injunction temporarily changing custody of the parties’ six-year-old child (“Child”), born out-of-wedlock, pending the final adjudication of the Petition for Custody and Injunction (“Petition” or “Petition for Custody”) filed by the Petitioner, Randall V. Harness, Jr. (“Father”), in which he seeks to legitimate and obtain custody of Child. We conclude that an extraordinary appeal is warranted, that both the ex parte injunction changing custody and the Trial Court’s subsequent order continuing that injunction should be vacated, and that custody of Child be restored to the Respondent, Tamara Reece Milton (“Mother”), pending further action by the Trial Court.

Loudon County Court of Appeals 03/03/17
Lee Phan v. Tennessee Department of Commerce and Insurance
M2016-00612-COA-R3-CV
Authoring Judge: Chancellor Andy D. Bennett
Trial Court Judge: Judge Russell T. Perkins

After a contested case hearing, an administrative law judge (“ALJ”), acting on behalf of the Tennessee Board of Cosmetology, revoked a cosmetologist’s license based upon evidence that he had assisted in the procurement of reciprocity licenses in exchange for cash.  The ALJ also assessed civil penalties against the cosmetologist in the amount of $20,000.  The cosmetologist filed a request for judicial review, and the chancery court affirmed the decision of the ALJ.  We have concluded that the ALJ’s decision is supported by substantial and material evidence and that none of the grounds raised by the cosmetologist justify reversal under the deferential standard of review described in Tenn. Code Ann. § 4-5-322(h).

Davidson County Court of Appeals 03/02/17
Grenda Harmer v. Turney Center Disciplinary Board, et al.
M2016-01156-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Judge Joseph Woodruff

This appeal involves review of prison disciplinary proceedings. The prisoner pled guilty to the possession of contraband and waived his right to a formal disciplinary hearing. He later attempted to appeal his conviction and have it set aside. The chancery court affirmed the conviction by the prison disciplinary board. We affirm.

Hickman County Court of Appeals 03/02/17
Laura Lee Demastus v. University Health System, Inc.
E2016-00375-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Deborah C. Stevens

Plaintiff Laura Lee Demastus brought this action against her former employer, University Health System, Inc., doing business as the University of Tennessee Medical Center (Employer). After Plaintiff had worked roughly three years as a nurse at the UT Medical Center, Employer suspected that she was illegally diverting medications. When Plaintiff’s supervisors confronted her with evidence of several suspicious transactions recorded by the medication monitoring systems, Plaintiff denied doing anything wrong or improper. She, however, could not explain the suspicious transactions. She was terminated shortly thereafter. Plaintiff brought this action under the Tennessee Disabilities Act (TDA), Tenn. Code Ann. § 8-50-103 et seq. (2016), alleging that she was fired solely because Employer perceived her to have the disability of drug addiction. Employer argued that it did not fire her because she was considered a drug addict, but because it thought she was stealing medications. Following discovery, the trial court granted summary judgment, holding that under the undisputed material facts, Plaintiff could not establish that Employer’s proffered non-discriminatory reason was a pretext for illegal discrimination. We affirm

Knox County Court of Appeals 03/02/17
Maryam Ghorashi-Bajestani v Masoud Bajestani
E2016-00063-COA-R3-CV
Authoring Judge: Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Jeffrey M. Atherton

This is the third appeal in a post-divorce case. It arises from Husband’s petition to modify the requirement that he pay private school tuition for his children’s elementary and secondary education, and Wife’s petition to calculate Husband’s income tax rate in order to determine the net amount to be paid to Wife out of Husband’s deferred compensation for 2011, 2012, and 2013. Husband contends the trial court erred by holding that his obligation to pay private school tuition was not modifiable because it was a contractual obligation. He also contends the trial court incorrectly calculated the tax rates and erred by refusing to allow him to introduce expert proof of the proper method for this calculation. We have determined the trial court erred in ruling that Husband’s obligation to pay private school tuition for elementary and secondary education was not modifiable. Therefore, we reverse and remand this issue with instructions for the trial court to determine whether a material change of circumstances has been established and, if so, whether to modify Husband’s obligation to pay private elementary and secondary school tuition for the children. With regard to the tax rates for 2011, 2012, and 2013, Husband failed to introduce evidence at the hearing that pertained to the proper method to be used to determine the tax rates. After the court rendered its ruling, Husband filed a Tenn. R. Civ. P. 52.02 motion seeking permission to present expert proof on the tax rate issue in order to alter or amend the ruling. We find no error with the decision to not consider Husband’s belated expert proof or the decision to deny the motion to alter or amend. We also affirm the trial court’s calculation of the tax rates and Wife’s share of Husband’s deferred compensation for the years in question. As for Wife’s challenge to the trial court’s decision to impute income to her for the purpose of calculating child support and refusing to consider work-related care expenses she might incur, we affirm these decisions.

Hamilton County Court of Appeals 03/01/17
SK Food Corporation, et. al., v. First Bank
M2016-01019-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Thomas W. Brothers

Three corporations approached a lender seeking to refinance an existing loan secured by a deed of trust on certain commercial properties. The parties entered an agreement specifying that the lender’s security interest would be a “first lien deed of trust” and requiring the borrowers to pay a nonrefundable “commitment fee.” The borrowers executed the agreement and paid the commitment fee, but the loan did not close due to the discovery of a prior lien on one of the properties. The borrowers filed suit against the lender for damages arising out of the lender’s refusal to lend or to refund the commitment fee. The trial court granted the lender’s motion for summary judgment but denied the lender’s request for attorneys’ fees. Discerning no error, we affirm.

Davidson County Court of Appeals 02/28/17
Jeanette Arnold Buntyn v. Stevonski Elliott Buntyn
W2016-00398-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Chancellor James F. Butler

This appeal stems from a divorce proceeding in which Wife was awarded alimony in futuro. For the reasons stated herein, we vacate the trial court’s award of alimony and remand for further proceedings.

Madison County Court of Appeals 02/28/17
Charles Van Morgan v. The Tennessee Civil Service Commission, et al
M2016-00034-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Chancellor Carol L. McCoy

Judicial review of a decision of the Tennessee Board of Appeals upholding the termination of a trooper with the Tennessee Highway Patrol for his conduct during a traffic pursuit. The trial court upheld the trooper’s termination. On appeal, the trooper asserts that the administrative judge who heard the case erred in disregarding expert testimony and, as a consequence, the Board’s decision is unsupported by substantial and material evidence. Discerning no error, we affirm the judgment of the trial court.

Davidson County Court of Appeals 02/28/17
Jonathan Harper v. Steve Harris, et al
M2016-00564-COA-R3-JV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Joel Perry

This appeal involves a father’s petition to modify an order granting custody of his minor child to the maternal grandparents. The father alternatively requested an order granting him specific visitation. The juvenile court dismissed the petition on the grandparents’ motion. After our review of the petition, we conclude the juvenile court appropriately dismissed father’s request for a change of custody based solely upon the presumption of superior parental rights. But the court erred in dismissing the father’s request for visitation. Accordingly, we affirm in part and reverse in part.

Robertson County Court of Appeals 02/28/17
Hiam Alshinnawi v. Judy Denry
M2016-00177-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge J. Mark Rogers


This case originated when the plaintiff filed an action against the defendant process server, alleging that the defendant failed to accomplish service within the specified time period. The plaintiff’s action was dismissed by the trial court due to the plaintiff’s failure to present sufficient evidence to prove her case at trial. The plaintiff timely appealed. Because the plaintiff has failed to comply with Tennessee Rule of Appellate Procedure 27 and Tennessee Court of Appeals Rule 6, we dismiss this appeal.

Rutherford County Court of Appeals 02/28/17
In Re B.B., et al
M2016-00953-COA-R3-PT
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Special Judge Phillip A. Maxey

The grandparents of three minor children brought this action to terminate the parental rights of the children’s mother. Following a trial, the court found clear and convincing evidence of grounds to terminate mother’s parental rights pursuant to Tenn. Code Ann. §§ 36-1-113(g)(8)(B)(i), (ii) and -(9)(A)(iv), (v) (2015). By the same quantum of proof, the trial court also found that termination is in the children’s best interest. Mother appeals. We hold that Tenn. Code Ann. § 36-1-113(g)(9)(A) is not applicable to this case. Accordingly, we vacate the trial court’s holding with respect to that ground. As for the remaining grounds, we hold that the trial court’s final order failed to include the requisite findings of fact and conclusions of law required under Tenn. Code Ann. § 36-1-113(k). As a result, we vacate the final order of termination and remand to the trial court with instructions.  

Cheatham County Court of Appeals 02/28/17
Estate of Charles Allen Lane, et al v. Amanda Davenport Courteaux
M2016-00609-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Chancellor Howard W. Wilson

Decedent had a life insurance policy in which she named her husband and sister as beneficiaries. Upon her death, Decedent’s husband filed suit to recover the proceeds Decedent left to her sister and place them in trust for the benefit of Decedent’s son, who was a minor at the time. The trial court concluded the son was entitled to the proceeds based on the theory of promissory estoppel. The sister appealed, and we reverse the trial court’s judgment. An insurance policy is a contract between the insured and the insurance company, and Decedent was entitled to designate whoever she desired as a beneficiary of her policy. Evidence of Decedent’s intent with respect to the proceeds does not deprive the named beneficiary of her right to the funds.

Rutherford County Court of Appeals 02/28/17
Donna Babb Frinks v. Patricia Eileen Horvath, et al.
E2016-00944-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Douglas T. Jenkins, Chancellor

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. 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 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.

Jefferson County Court of Appeals 02/28/17