Snodgrass v. Freemon
| Decision Date | 29 July 2003 |
| Docket Number | No. M2002-01247-COA-R3-CV.,M2002-01247-COA-R3-CV. |
| Parties | ELIZABETH CONWAY SNODGRASS v. ALLEN HOWARD FREEMON |
| Court | Tennessee Court of Appeals |
Appeal from the Chancery Court for Lawrence County, No. 2730 Stella L. Hargrove, Chancellor
Judgment of the Chancery Court Affirmed and Remanded
Barbara Freemon, Nashville, Tennessee, for the appellant, Allen Howard Freemon.
Andrew Hoover, Pulaski, Tennessee, for the appellee, Elizabeth Conway Snodgrass.
WILLIAM B. CAIN, J., delivered the opinion of the court, in which PATRICIA J. COTTRELL, J., and CAROL L. McCOY, SP. J., joined.
Defendant/Cross-Claimant appeals the action of the trial court in holding that Cross-Claimant had not carried his burden of proof to establish adverse possession of the property in issue. We affirm the judgment of the trial court.
This is a case involving adverse possession and adverse possession alone. Much toil in the vineyard could have been avoided if the parties would have focused their trial labors, and particularly their appellate labors, on this cardinal fact.
"The object and purpose of any pleading is to give notice of the nature of the wrongs and injuries complained of with reasonable certainty, and notice of the defenses that will be interposed, and to acquaint the court with the real issues to be tried." Hammett v. Vogue, Inc., 165 S.W.2d 577, 579 (Tenn. 1942).
Tennessee has long recognized the common law rule that "the probata must correspond to the allegata." Tennessee Enamel Mfg. Co. v. Stoves, Inc., 192 F.2d 863, 867 (6th Cir. 1951), cert. denied, 342 U.S. 946 (1952); see also American Lead Pencil Co. v. Nashville, C. & St. L. Ry., 134 S.W. 613 (Tenn. 1911); Nichols v. Smith, 111 S.W.2d 911 (Tenn. Ct. App. 1937). While the common law rule has been relaxed by the provisions of Tennessee Rule of Civil Procedure 15.02 relative to issues tried by express or implied consent of the parties, the common law rule still applies where there is no express or implied consent of the parties to try issues extraneous to the pleadings. Hiller v. Hailey, 915 S.W.2d 800 (Tenn. Ct. App. 1995).
This suit was originally filed by Elizabeth Conway Snodgrass in July of 1985 in the Chancery Court of Lawrence County, Tennessee, wherein Howard P. Freemon, trustee, and Allen Howard Freemon, individually, were among the named defendants. Also named as defendants were:
ALL OTHER PERSONS UNKNOWN Claiming Any Right, Title, Estate, Lien or Interest in and to the Real Property Described in Complainant's Complaint Adverse To Complainant's Ownership, or any Cloud Upon Complainant's Title Thereto; Such Property Being Located in the 13th Civil District of Lawrence County, Tennessee on Chief's Creek Containing 215.4 acres, more or less, and Being Bounded Generally North by G.R. Limited Partners; East by Murfreesboro Bank and Trust Company and Raymond Dale, Et Ux; South by Wallace Gray, Et Ux, and West by Chief Creek Corporation and Natchez Trace Wilderness Preserve.
This was an action to quiet title and to adjudge and determine a boundary line for the Snodgrass' real estate. Snodgrass asserted title to a 215.4 acre tract, the principle prayer for relief being:
That the Defendants be required to set forth the nature of their claims, if any, and that any adverse claims of the said defendants, or any of them, be determined by a decree of this Court; and that by said decree, it be declared and adjudged that the Complainant is the absolute and fee simple owner of said premises, and that none of the Defendants in this cause, have any estate or interest whatever in and to said land and premises; and that said defendants, and each of them, be forever debarred from asserting any claim whatever in or to said land and premises adverse to the Complainant.
On November 12, 1986, Allen Howard Freemon filed an Amended Answer and Counter-Claim essentially denying the allegations of the Complaint and asserting that a certain portion of the property claimed by Snodgrass was, in fact, owned by Allen Howard Freemon under a recorded deed. He then asserted:
That the Counter-Plaintiff has been in possession of this property for a period in excess of twenty (20) years. The Counter-Plaintiff's possession of the property has been open, notorious, adverse to any other party, continuous, and exclusive. That said possession has been pursuant to color of title in excess of seven (7) years.
On November 7, 1989, the original Complaint was dismissed in its entirety because of failure of Snodgrass to diligently prosecute the action. This dismissal was without prejudice. The case then was left pending only on the Counter-Complaint of Allen Howard Freemon, asserting title by adverse possession.
Following dismissal of the Complaint for failure to prosecute, there ensued twelve years of blissful slumber which was interrupted on September 21, 2001 when Snodgrass sought dismissal of the Freemon Counter-Claim, primarily under the provisions of Tennessee Code Annotated section 28-2-109 and section 28-2-110 because of the non-payment of taxes by Freemon for a period of twenty years. It appears from the proof that the failure to prosecute the original action was not due to neglect or inadvertence but was a studied, affirmative, tactical decision. The husband of the original Plaintiff, John Snodgrass, testified:
Q. And when that action was filed — That is the action that was filed in the case that we are hearing today, but was then non-suited?
A. That is correct.
Q. Why was that?
A. It was non-suited — Why was it non-suited?
Q. Yes.
A. To my knowledge, we were — Of course, we were, at that time, in the upper Rhode Island and in New York State. We were advised that we should nonsuit and bring suit later, because it would — our case would be better if we did that.
Q. All right. And that was on the advice of counsel?
A. That is correct.
Q. Did the subject of the payment or non-payment of taxes, was that an issue of the — of the decision to non-suit?
A. It was an issue only in that we wanted to be able to perfect our claim — or let's say Bet — Betsy's claim to the property by having an unbroken chain of — of payment of taxes, so that under the statute, we would be — would be — or she would be the — the owner of the property by presumptive, anyway, by the fact of the payment of twenty (20) years of taxes on the property.
Q. And that would have gone back to the time — She began paying taxes in what year?
A. She began paying taxes in 1976. And her brother paid the taxes in `75 and `74, I understand. And, then, previous to that, the taxes were paid because of the probate of her father's will back to 1967.
Q. In non-suiting your primary action, did there come a determination that you wanted to defend title to this property rather than prosecute title to this property?
A. I don't — Please restate the question.
Q. Let me ask you in the al — in the alternative. Is that instead of the Freemon family defending their title, you wanted them to prosecute their title?
A. Well, yes. Because, again, under the statute, they are barred from prosecution if they are trying to bring suit to — to — for title because of non-payment of taxes for twenty (20) years.
Q. And after Mr. Fowlkes, Mr. Jack Henry represented you?
A. That is correct.
Q. And was his advice consistent with what Mr. Fowlkes had told you?
A. Yes, that we should insure that we could show that we had paid the taxes for twenty (20) years and have a period of time of twenty (20) years of paid — of non-payment of taxes by Mr. Freemon or Mr. Freemon's family.
Q. And as of 1996, that has occurred. You — Your wife has now paid taxes for twenty (20) years?
A. That is correct.
It appears that counsel for Ms. Snodgrass, after filing her Complaint to quiet title, came to grips with the practical problems facing whichever party had the burden of proof in settling questions of title and possession of what is, in large part, wilderness land, uninhabited and uncultivated.
The effort to use Tennessee Code Annotated sections 28-2-109 & 110 relative to the payment of taxes as a basis for dismissing the Counter-Claim on summary judgment failed when the trial court, on November 27, 2001, entered an Order holding:
1. This case was originally filed by Plaintiff on the 29th day of July, 1985, against eight defendants, including Allen Howard Freemon. A Counter-Claim was filed on behalf of Allen Howard Freemon. Subsequently, Plaintiff's action was dismissed for lack of prosecution. The Counter-Claim survives.
2. The date of controversy is July 29, 1985. Plaintiff cannot show that she is entitled to prima facie presumption of ownership under Tenn. Code Ann. 28-2-109. As of the date of filing her lawsuit, she can prove payment of taxes from 1967 to 1975 and from 1977 to 1985. Plaintiff cannot show that she has paid taxes on this property to the exclusion of all others during this time. There are material questions of fact as to whether the taxes paid by and through Defendant, Freemon, since 1958, include the same property as that claimed by Plaintiff.
3. There are mixed questions of fact and law as to whether Defendant, Freemon's use of that portion of land in dispute, has been in open, continuous, notorious and adverse possession, under proper color of title for more than seven years.
4. The Court assumes that Plaintiff is asking her to question whether Defendant, Freemon's Counter-Claim is brought in bad faith, relative to the prior action against Conway and Shaeffer in 1972. Whether Defendant, Freemon, is acting in bad faith is a question of fact.
5. There are material questions of fact as to whether this action is, indeed, simply a boundary line dispute between Plaintiff and Defendant, Freemon. The Court is ready to appoint an independent surveyor as Special Master in an effort to end a controversy that exceeds sixteen years.
The hopes expressed by the trial court in the last paragraph of this Order...
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