IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

November 21, 2016 Session

DONNA BABB FRINKS v. PATRICIA EILEEN HORVATH ET AL.

Appeal from the Chancery Court for Jefferson County

No. 12-CV-237 Douglas T. Jenkins, Chancellor1

No. E2016-00944-COA-R3-CV

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.2 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 

 

1

Sitting by interchange.

2 Neither of the other two lawsuits is at issue in this appeal.

02/28/2017
2

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. 

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

Affirmed; Case Remanded

THOMAS R. FRIERSON, II, J., delivered the opinion of the court, in which D. MICHAEL 

SWINEY, C.J., and RICHARD H. DINKINS, J., joined.

William S. Nunnally, Greeneville, Tennessee, for the appellant, Donna Babb Frinks.

Patricia Eileen Horvath, Dandridge, Tennessee, Pro Se.

OPINION

I. Factual and Procedural Background

The chain of title associated with the strip of lakefront real property at issue 

(“Disputed Property”) is demonstrated by recorded deeds and testimony contained in the 

record and is not in dispute on appeal. The plaintiff’s mother, Kathleen Babb, originally 

inherited a 488-acre farm located approximately at what is now Douglas Lake in 

Jefferson County, Tennessee, from her father, C.H. Cowan, who devised it to his 

daughter for life and then to her “bodily heirs.”3 C.H. Cowan died in 1929 when 

Kathleen Babb was eighteen years old. In 1942, when TVA obtained its flowage 

easement, Kathleen Babb was thirty-one years old. She had one child, Donna Babb, who 

was then five years of age and grew up to become the plaintiff, Donna Babb Frinks. 

Kathleen Babb subsequently died without any additional children. Prior to her death, 

Kathleen Babb retained ownership of the area below contour line 1002 of Douglas Lake, 

subject to TVA’s flowage easement rights. In 1948, TVA paid $35,628.50 to condemn 

Kathleen Babb’s easement rights. In 1944, Alfred Swann purchased the approximately 

245 acres above contour line 1002 for a price of $5,000.

4

 In the 1950s, Mr. Swann 

created a subdivision, now known as “Little Bonanza,” with tracts of land adjacent to 

Douglas Lake. 

 

3 Mr. Cowan also devised a separate, nearby farm property to his son, Robert Cowan.

4

In testimony and on appeal, Ms. Frinks has referred to Mr. Swann’s acquisition of “240” acres; 

however, the 1944 deed granting him title reflects a property description of “245 acres, more or less,” 

lying above contour line 1002. This distinction has no effect on Ms. Frinks’s title at issue. 
3

Ms. Frinks acknowledged at trial that prior to 2006, she did not realize that she 

still owned the Property below contour line 1002, some of which adjoins parcels in the 

Little Bonanza subdivision and some of which adjoins parcels north of the subdivision. 

She had resided in Florida all of her adult life except for some summer vacations spent in 

a cabin she owned with her husband at Coker Creek in Monroe County, Tennessee. Ms. 

Frinks testified that in 2006, she received a telephone call from an individual she did not 

know who stated that he and his wife owned property within the Little Bonanza

subdivision and had been attempting to discern who owned title to the property below 

contour line 1002. According to Ms. Frinks, the individual advised her that “[s]omeone 

is selling your property.” She stated that the caller and his wife had traveled “to the 

courthouse and gone back to all of the records and discovered all of this.” Ms. Frinks 

testified that when she examined relevant courthouse records, she decided that she could 

not “turn [her] back” on the “legacy” of the Cowan farm that had been devised to her. 

She then retained counsel.

Ms. Frinks’s counsel sent a letter, dated November 14, 2006, to all affected

property owners, advising them that if they owned a dock over Ms. Frinks’s property, 

they could qualify for a valid TVA permit for the dock by purchasing title to the affected 

property from Ms. Frinks. The letter stated in pertinent part: 

Dear Property Owner:

This letter is being sent to you on behalf of Donna Babb Frinks 

because you have been identified as the owner of a lot or parcel of land on 

Douglas Lake which is either a lot in Little Bonanza Subdivision or a parcel 

to its north. You may own more than one lot. The purpose of this letter is 

to offer you an opportunity to purchase from Mrs. Frinks a portion of her 

property which lies between your tract and the water level of Douglas Lake, 

as it ebbs and flows.

Enclosed herein please find a copy of the relevant section of 

regulations relating to applications to place a dock on a reservoir 

maintained by the Tennessee Valley Authority. As you will see from the 

enclosure, TVA has the right to regulate the use of land and land rights 

subjacent to TVA reservoirs. If a facility is to be built on private land, the 

applicant must own the fee simple interest in the land or have a long term 

lease over the land in question. As you can see from the enclosed 

regulations, TVA recognizes that in some cases private property has been 

subdivided in a way that left an intervening strip of land between the 

upland boundary of the TVA flowage easement and the waters of the 

reservoir. The regulations provide that, in some situations, the owner of the 
4

intervening strip cannot be identified or does not object to the construction 

of facilities over the landowner’s property. In such circumstances, TVA 

may exercise its discretion to permit a facility if there is no objection from 

the fee owner of the intervening strip. However, the applicant (lot owner) 

is responsible for insuring that there is no objection from any owner of such 

land.

* * *

Mrs. Frinks does object to the exercise of privileges over her property. 

However, she is willing to convey her interest to lakefront lot owners in 

order for the lot owners to solve their problems or potential problems with 

TVA.

* * *

The purpose of this letter is to communicate an offer that would 

permanently resolve this issue for the lakefront owners. It is not in the 

nature of a demand that you do anything. You may not need or want a 

dock. If you agree that it would be in your best interest to acquire the 

ownership of the land between your lot or lots and the actual water level, 

this letter is for the purpose of advising you that you now have that 

opportunity. The price that Mrs. Frinks is placing upon her land to convey 

her rights to lot owners is based upon the amount of lake frontage for each 

parcel. The average parcel in Little Bonanza fronts on the lake by 

approximately one hundred (100) feet. Her minimum price for the land 

adjacent to a lot is the sum of $5,000.00. If, however, your lot contains 

more lakefront footage, the price would be higher. For example, if a 

property owner has three hundred (300) feet of lake frontage, the price 

would be $15,000.00. Her price is $50.00 per foot. This offer will be good 

for the next sixty (60) days.

* * *

If you wish to take advantage of this opportunity, please contact the 

undersigned, preferably in writing, to express your willingness to do so and 

we will prepare the necessary deed and arrange for a date of mutual 

convenience for there to be an exchange of the deed for the purchase 

amount.
5

Ms. Horvath’s name, complete with her correct address, was listed by Ms. Frinks’s 

counsel among the sixty-two recipients of the letter. Ms. Horvath testified at trial that she 

did not remember receiving the letter.

On October 3, 2012, Ms. Frinks filed a complaint against Ms. Horvath, alleging 

trespass and requesting declaratory judgment quieting her title to the Disputed Property 

and a permanent injunction mandating Ms. Horvath “to remove any facility or 

improvements she had placed or constructed upon [Ms. Frinks’s] property.”

5 Ms. Frinks 

also requested damages for the value of the trespass, which she asserted amounted to not 

less than $3,000.00 per year. She attached to the complaint copies of the relevant 

recorded deeds and an excerpt from “TVA Section 26A Regulations: Approval of 

Construction in the Tennessee River System and Regulation of Structures.” In particular, 

Ms. Frinks relied on the following regulatory subsection regarding obtaining permission 

to build a facility on TVA land:

If the facility is to be built on TVA land, the applicant must, in 

addition to the other requirements of this part, own the fee interest in or 

have an adequate leasehold or easement interest of sufficient tenure to 

cover the normal useful life of the proposed facility in land immediately 

adjoining the TVA land. If the facility is to be built on private land, the 

applicant must own the fee interest in the land or have an adequate 

leasehold or easement interest in the property where the facility will be 

located. TVA recognizes, however, that in some cases private property has 

been subdivided in a way that left an intervening strip of land between the 

upland boundary of a TVA flowage easement and the waters of the 

reservoir, or did not convey to the adjoining landowner the land underlying 

the waters of the reservoir, or did not convey to the adjoining landowner the 

land underlying the waters of the reservoir. In some of these situations, the 

owner of the intervening strip or underlying land cannot be identified or 

does not object to construction of water-use facilities by the adjacent 

landowner. In these situations, TVA may exercise its discretion to permit 

the facility, provided there is no objection from the fee owner of the 

intervening strip or underlying land. A TVA permit conveys no property 

interest. The applicant is responsible for locating the proposed facility on 

qualifying land and ensuring that there is no objection from any owner of 

such land. TVA may require the applicant to provide appropriate 

verification of ownership and lack of objection, but TVA is not responsible 

 

5

In the instant complaint, Ms. Frinks also named as defendants, respectively, separate landowners Lisa 

Mims Cope and Gladys M. Roach. During trial in this matter, Ms. Frinks’s counsel announced that the 

action against Ms. Cope had been settled. The record contains no indication of the disposition of the 

action against Ms. Roach. 
6

for resolving ownership questions. In case of a dispute, TVA may require 

private parties requesting TVA action to grant or revoke a TVA permit to 

obtain a court order declaring respective land rights. TVA may exercise its 

discretion to permit a facility on TVA land that is located up or downstream 

from the land which makes the applicant eligible for consideration to 

receive a permit.

18 C.F.R. § 1304.2(a) (2003).

Ms. Horvath, acting without benefit of counsel, filed an answer on December 3, 

2012. She admitted to matters of public record, including the description in the 

complaint of the recorded deed to her 5.9-acre property at Douglas Lake. Ms. Horvath

denied the allegation of trespassing. Regarding the placement of her dock and lack of 

consent from Ms. Frinks, Ms. Horvath stated:

[Ms. Horvath] admits she maintains a dock upon Douglas Lake 

immediately adjacent to her residence. The remaining allegations in said 

paragraph are admitted in that [Ms. Horvath] has never known and still 

does not know [Ms. Frinks’s] consent or permission was necessary for the 

placement of the dock. 

Although Ms. Horvath averred in her answer that this action was “time barred by the 

doctrine of laches and/or the applicable statute of limitations,” she did not state that she 

was asserting an affirmative defense of adverse possession. She also did not file a 

counterclaim. 

In the meantime, the trial court entered an order on October 18, 2013, 

consolidating this action with similar lawsuits filed by Ms. Frinks against landowners: 

styled, respectively, Donna (Babb) Frinks v. Garland E. Layman et al. and Donna (Babb) 

Frinks v. Sarah L. Collier [Parker], and Woodrow Sanford and wife Darlene Sanford. In 

the consolidation order, the trial court continued the action styled Frinks v. Layman, and 

the record contains no further indication of proceedings in that action. Following entry of 

the consolidation order, Chancellor Telford E. Fogerty, Jr., who had initially presided 

over the instant action, recused himself by order entered December 15, 2014, from this 

action, the actions against Ms. Collier and the Sanfords, and an action styled Donna 

(Babb) Frinks v. Donald L. Kivett et al. On September 6, 2015, our Supreme Court 

appointed Chancellor Douglas T. Jenkins to hear by interchange the consolidated actions 

against Ms. Horvath, Ms. Collier, the Sanfords, and Mr. Kivett.
7

The trial court conducted a bench trial on November 6, 2015. Ms. Horvath and 

Ms. Collier each respectively appeared at trial and testified without benefit of counsel.6 

Ms. Frinks also testified. Regarding the placement of her dock, Ms. Horvath testified that 

she acquired title to her Douglas Lake property on November 14, 1992, and installed the 

dock right away. She stated that typically, when the water level was low enough that the 

dock was not floating, approximately four months per year, the dock rested on the side of 

a steep slope. Ms. Horvath stated that she had always believed that TVA owned and 

controlled the property between her boundary line and the lake. She acknowledged that 

she had never sought a permit from TVA to install the dock at issue. According to Ms. 

Horvath, she installed a larger dock at some point in the five or ten years prior to trial. 

When questioned regarding whether a period of time elapsed between removal of the old 

dock and installment of the larger one, Ms. Horvath stated: “Not really. It was basically 

just put a bigger one in there.” When pressed by Ms. Frinks’s counsel as to whether it 

“[c]ould have been a few days” that went by while she was replacing the dock, Ms. 

Horvath acknowledged that “[i]t could have.” 

In a judgment entered April 6, 2016, the trial court dismissed Ms. Frinks’s 

complaint upon finding that although Ms. Frinks held title to the Disputed Property, Ms. 

Horvath had established adverse possession of the portion on which her dock sat when 

water levels were down and over which her dock floated when levels were high. 

Pursuant to Tennessee Rule of Civil Procedure 54.02, the court certified the April 6, 2016 

judgment as final in the action against Ms. Horvath.7 Ms. Frinks timely appealed.

II. Issues Presented

Ms. Frinks presents three issues on appeal, which we have restated as follows:

1. Whether the trial court erred by allowing Ms. Horvath to raise the 

affirmative defense of adverse possession during trial when she 

previously had not pled adverse possession.

2. Whether the trial court erred by finding that Ms. Horvath had 

established adverse possession.

 

6

The trial court also addressed Ms. Frinks’s actions against the Sanfords and Mr. Kivett, ruling that Ms. 

Frinks was entitled to a default judgment against Mr. Kivett and continuing the Sanfords’ case upon 

finding that the Sanfords had transferred ownership of their affected parcel to their son, whom the court 

added as a party defendant. 

7

The record in this matter also contains a “Final Judgment,” entered April 27, 2016, in which the trial 

court declared Ms. Frinks the owner of the property on which Ms. Collier testified that she had placed a 

dock in 2011. The court ordered Ms. Collier to remove her dock from Ms. Frinks’s property.
8

3. Whether the trial court erred by declining to order removal of Ms. 

Horvath’s allegedly trespassing dock.

III. Standard of Review

Our review of the trial court’s judgment following a non-jury trial is de novo upon 

the record, with a presumption of correctness as to the trial court’s findings of fact unless 

the preponderance of the evidence is otherwise. See Tenn. R. App. P. 13(d); Rogers v. 

Louisville Land Co., 367 S.W.3d 196, 204 (Tenn. 2012). “In order for the evidence to 

preponderate against the trial court’s findings of fact, the evidence must support another 

finding of fact with greater convincing effect.” Wood v. Starko, 197 S.W.3d 255, 257 

(Tenn. Ct. App. 2006) (citing Rawlings v. John Hancock Mut. Life Ins. Co., 78 S.W.3d 

291, 296 (Tenn. Ct. App. 2001)). The trial court’s determinations regarding witness 

credibility are entitled to great weight on appeal and shall not be disturbed absent clear 

and convincing evidence to the contrary. See Jones v. Garrett, 92 S.W.3d 835, 838 

(Tenn. 2002). We review the trial court’s conclusions of law de novo with no 

presumption of correctness. Hughes v. Metro. Gov’t of Nashville & Davidson County, 

340 S.W.3d 352, 360 (Tenn. 2011).

In reviewing pleadings, we “must give effect to the substance, rather than the form 

or terminology of a pleading.” Stewart v. Schofield, 368 S.W.3d 457, 463 (Tenn. 2012) 

(citing Abshure v. Methodist Healthcare-Memphis Hosp., 325 S.W.3d 98, 104 (Tenn. 

2010)). We note also that pleadings “prepared by pro se litigants untrained in the law 

should be measured by less stringent standards than those applied to pleadings prepared 

by lawyers.” Stewart, 368 S.W.3d at 463 (citing Carter v. Bell, 279 S.W.3d 560, 568 

(Tenn. 2009); Hessmer v. Hessmer, 138 S.W.3d 901, 903 (Tenn. Ct. App. 2003); Young 

v. Barrow, 130 S.W.3d 59, 63 (Tenn. Ct. App. 2003)). Parties proceeding without benefit 

of counsel are “entitled to fair and equal treatment by the courts,” but we “must not 

excuse pro se litigants from complying with the same substantive and procedural rules 

that represented parties are expected to observe.” Hessmer v. Hessmer, 138 S.W.3d 901, 

903 (Tenn. Ct. App. 2003).

IV. Affirmative Defense of Adverse Possession

In contending that the trial court erred by finding that Ms. Horvath had established 

the affirmative defense of adverse possession, Ms. Frinks specifically argues that (1) Ms. 

Horvath should not have been allowed to argue adverse possession at trial because she 

had not pled it beforehand, (2) Ms. Horvath had not maintained her dock on the disputed 

property for the full twenty years required for common law adverse possession by the 

time of the complaint’s filing, (3) Ms. Horvath had not possessed the disputed property 
9

under the color of title required for adverse possession pursuant to Tennessee Code 

Annotated § 28-2-102 (2000), (4) Ms. Frinks had no knowledge of her ownership of the 

Disputed Property until 2006 and no knowledge of Ms. Horvath’s dock until she 

subsequently viewed an aerial photograph, and (5) Ms. Horvath’s possession was not 

continuous and uninterrupted. Upon our careful review, we determine that the trial court 

did not err by considering the affirmative defense of adverse possession because the 

parties tried the defense by implied consent. We further determine that although the trial 

court erred in finding that Ms. Horvath had adversely possessed the area of land under 

her dock for a full twenty years prior to commencement of this action, the error was 

harmless because Ms. Horvath did establish the seven-year period necessary for the 

statutory defense provided, regardless of color of title, by Tennessee Code Annotated § 

28-2-103 (2000). We will address each of Ms. Frinks’s arguments in turn.

Acquisition of property by adverse possession may operate as a bar to recovery of 

the property by the title holder, and it may also operate to vest the adverse possessor with 

title. See Cumulus Broad., Inc. v. Shim, 226 S.W.3d 366, 375 (Tenn. 2007); Wilson v. 

Price, 195 S.W.3d 661, 666-67 (Tenn. Ct. App. 2005). As our Supreme Court has 

explained regarding common law adverse possession:

In our state, common law adverse possession rests upon the proposition 

“that, where one has remained in uninterrupted and continuous possession 

of land for 20 years, a grant or deed will be presumed.” Color (or 

assurance) of title is not required. In order to establish adverse possession 

under this 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. Adverse possession is, of course, a question of 

fact. The burden of proof is on the individual claiming ownership by 

adverse possession and the quality of evidence must be clear and 

convincing. The actual owner must either have knowledge of the adverse 

possession, or the possession must be so open and notorious to imply a 

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

and notorious to imply a presumption of that fact. When an adverse 

possessor holds the land for a period of twenty years, even absent any 

assurance or color of title, the title vests in that possessor. 

Cumulus, 226 S.W.3d at 376-77 (internal citations omitted). Our Supreme Court has 

elucidated the statutory forms of adverse possession as follows in pertinent part:

[L]imitations of real property actions, i.e., the statutory forms of adverse 

possession, are found in Tennessee Code Annotated sections 28-2-101 

through 103. Initially, land granted by the state, for example, requires only 
10

a period of seven years’ adverse possession under a recorded assurance or 

color of title, terms which are used interchangeably. Tenn. Code Ann. § 

28-2-101 (2000); see, e.g., Slatton v. Tenn. Coal, Iron, & R.R. Co., 109 

Tenn. 415, 75 S.W. 926, 927 (Tenn. 1902). Another provision, Tennessee 

Code Annotated section 28-2-105, does not require any proof of a state land 

grant but does prescribe assurance of title for thirty years and a minimum of 

seven years of adverse possession. The limitations on actions statutes, 

described in Tennessee Code Annotated sections 28-2-102 and 103, are 

defensive only, barring only the remedy. Kittel v. Steger, 121 Tenn. 400, 

117 S.W. 500, 503 (Tenn. 1909). These rights may be utilized by the 

adverse holder only in the defense of a suit and not as a means to bar use by 

the rightful owner. Slavely v. Bridges, 57 Tenn. App. 372, 418 S.W.2d 472, 

479 (Tenn. Ct. App. 1967). Tennessee Code Annotated section 28-2-102 

provides a defense when there is assurance of title and seven years 

possession; this statute serves as protection as to the entire boundary as 

described. Section 28-2-103, which does not involve color of title, protects 

an adverse holder after a period of seven years but only as to that portion of 

the land in his actual possession. Shearer v. Vandergriff, 661 S.W.2d 680, 

682 (Tenn. 1983).

Cumulus, 226 S.W.3d at 376 (footnote omitted).

A. Affirmative Defense Tried by Implied Consent

Ms. Frinks argues that the trial court erred by allowing Ms. Horvath to raise the 

affirmative defense of adverse possession for the first time during her opening statement 

at trial. Ms. Frinks asserts that, pursuant to Tennessee Rule of Civil Procedure 8.03, Ms. 

Horvath waived the defense of adverse possession by failing to raise it in prior pleadings. 

Although Ms. Horvath maintains on appeal that she “did claim Adverse Possession,” she 

does not dispute that she failed to include adverse possession as an affirmative defense in 

her answer to the complaint. It is also clear from the record that Ms. Horvath did not 

assert a counterclaim at any time. Upon our thorough review of the record, however, we 

determine that the parties tried by implied consent, as an issue, the affirmative defense of 

adverse possession.

Tennessee Rule of Civil Procedure 8.03 provides: 

In pleading to a preceding pleading, a party shall set forth affirmatively 

facts in short and plain terms relied upon to constitute accord and 

satisfaction, arbitration and award, express assumption of risk, comparative 

fault (including the identity or description of any other alleged tortfeasors), 
11

discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, 

illegality, laches, license, payment, release, res judicata, statute of frauds, 

statute of limitations, statute of repose, waiver, workers’ compensation 

immunity, and any other matter constituting an affirmative defense. When 

a party has mistakenly designated a defense as a counterclaim or a 

counterclaim as a defense, the court, if justice so requires, shall treat the 

pleading as if there had been a proper designation.

We note that although common law adverse possession may be invoked either 

offensively or defensively, the statutory forms of adverse possession may be invoked 

solely as affirmative defenses. See Cumulus, 226 S.W.3d at 376-77; see, e.g., Brewer v. 

Piggee, No. W2006-01788-COA-R3-CV, No. 2007 WL 1946632, at *7-9 (reversing the 

trial court’s grant of the plaintiff’s motion for judgment on the pleadings in part because 

the trial court had failed to address the defendant’s “affirmative defense” of adverse 

possession pursuant to Tenn. Code Ann. § 28-2-102).

Tennessee Rule of Civil Procedure 15.02 creates an exception to the general rule 

that “[j]udgments awarded beyond the scope of the pleadings are void.” See Randolph v. 

Meduri, 416 S.W.3d 378, 384 (Tenn. Ct. App. 2011). Rule 15.02 provides in pertinent 

part:

15.02. Amendments to Conform to the Evidence.—When issues not raised 

by the pleadings are tried by express or implied consent of the parties, they 

shall be treated in all respects as if they had been raised in the pleadings. 

Such amendment of the pleadings as may be necessary to cause them to 

conform to the evidence and to raise these issues may be made upon motion 

of any party at any time, even after judgment; but failure so to amend does 

not affect the result of the trial of these issues.

“‘Generally speaking, trial by implied consent will be found where the party opposed to 

the amendment knew or should reasonably have known of the evidence relating to the 

new issue, did not object to this evidence, and was not prejudiced thereby.’” Hiller v. 

Hailey, 915 S.W.2d 800, 804 (Tenn. Ct. App. 1995), perm. app. denied (Tenn. Dec. 18, 

1995) (quoting Zack Cheek Builders v. McLeod, 597 S.W.2d 888, 890-91 (Tenn. 1980)). 

As this Court has explained, “‘[t]rial by implied consent is not shown by the presentation 

of evidence that is relevant to an unestablished issue when that evidence is also relevant 

to the established issue.’” Christmas Lumber Co., Inc. v.. Valiga, 99 S.W.3d 585, 593 

(Tenn. Ct. App. 2002) (quoting McLemore v. Powell, 968 S.W.2d 799, 803 (Tenn. Ct.

App. 1997)). “The determination of whether there was implied consent rests in the 

discretion of the trial judge, whose determination can be reversed only upon a finding of 

abuse.” Zack Cheek Builders, Inc. v. McLeod, 597 S.W.2d 888, 891 (Tenn. 1980).
12

At trial, the parties were sworn in as witnesses following an opening statement 

delivered by Ms. Frinks’s counsel. The trial court then asked Ms. Horvath to explain in 

what ways she disagreed with Ms. Frinks’s counsel’s statement. As Ms. Horvath 

explained her position, the trial court questioned her by way of eliciting testimony from 

her prior to cross-examination. During the court’s questioning, the following exchange 

ensued:

The Court: [A]re you telling me that you have just always 

freely gone to and from the edge of the water 

since [19]92; is that what you are telling me?

Mr. Horvath: Yes, because I thought TVA owned all that 

down in there. See, what it is, there is a bank. 

My dock sits on the bank, a steep bank. It goes 

into a creek bed. I mean, I do not have no 

beach property out from my house or anything. 

I am on a bank. The dock sits on a bank and the 

bank goes into a creek bed. I mean, we are up 

in a hollow. I mean, it is – there is just a narrow 

strip there going up in there.

The Court: Are you telling me under oath that each and 

every moment and second of time since 1992 

that you had a dock where your dock presently 

is?

Ms. Horvath: Yes, and I was told that I could get reverse 

possession since I had had it there for so long.

The Court: Do you know of any defense under the law that 

would reverse possession?

Ms. Frinks’s Counsel: I will read directly from the Cumulus 

Broadcasting case, Supreme Court of 

Tennessee. 

The Court: What did it say?

Ms. Frinks’s Counsel: [“]In order to establish prescriptive easement 

under the common law of this state, the usage 
13

must be adverse under claim of right, 

continuous, uninterrupted, open, visible, 

exclusive and with the knowledge and 

acquiescence of the owner servient tenement.” 

That is her problem. Mrs. Frinks was in Florida 

and didn’t know until 2006 that anybody, you 

know, was trespassing on her.

Ms. Horvath: But that was there all the time.

The Court: Was that with or without color of title?

Ms. Frinks’s Counsel: Well, I guess it really wouldn’t matter, but she 

would not have had color of title beyond the 

1002 contour, which is where her deed goes to, 

so she has no color of title. Beyond the area 

where her dock is is an area where she has 

never owned.

The Court: Does she – so what is her time period, seven, 20 

or 30 years?

Ms. Frinks’s Counsel: Well, it would be 20 if she – with no color of 

title, it would be 20; but again, it would require 

that Mrs. Frinks knew and sat back and did 

nothing or acquiesced and that is the problem.

Ms. Horvath: I thought it was seven years.

The Court: All right. Now, I understand, okay.

Ms. Frinks’s Counsel: Well, we will concede 30 if she says –

The Court: Well –

Ms. Horvath: I was told it was seven.

The Court: -- I think it is 20, but I am going to look at 

something before I say that.
14

Ms. Frinks’s Counsel: It is 20, to be honest with the Court. It is 20 

under prescriptive easements. The seven year 

and the 30 year is the statutory approach, but 

the common law approach is 20.

The Court: I gotcha.

Ms. Horvath: I wasn’t hiding my dock, Your Honor.

The Court: I understand.

Ms. Horvath: My dock sat there the whole time.

The Court: I understand.

Ms. Horvath: Nobody ever came up, told me you are 

trespassing on my land. Nobody ever put up 

signs saying you are not supposed to have a 

dock here.

The Court: Let me ask you this: Has TVA ever revoked 

your dock permit or told you to remove your 

dock, or is it still sitting there?

Ms. Horvath: I never had a dock permit.

On appeal, Ms. Frinks argues that because Ms. Horvath had not pled the 

affirmative defense of adverse possession, “counsel for [Ms. Frinks] was not prepared to 

state the date of the filing of this action.” Ms. Frinks thereby asserts that her counsel was 

not prepared to inform the trial court that this action was commenced six weeks shy of 

twenty years after Ms. Horvath obtained title to her property. We determine Ms. Frinks’s 

argument in this regard to be unavailing. Ms. Horvath’s warranty deed was introduced 

into the record during trial when Ms. Frinks’s counsel presented a copy of it in response 

to a question from the trial court. The complaint, of course, originally had been filed by 

Ms. Frinks. The record before us demonstrates, as it would have to the trial court, that 

Ms. Horvath’s warranty deed was executed on November 14, 1992, and that Ms. Frinks 

filed the complaint commencing this action on October 3, 2012, nineteen years and fortysix weeks later.

8

 Ms. Frinks’s argument that she was prejudiced by lack of notice that she 

would need to inform the trial court of the complaint’s filing date is unavailing.

 

8 Upon Ms. Frinks’s motion during the pendency of the appeal, this Court entered an order allowing Ms. 

Frinks to supplement the record with legible copies of the front and back pages of the complaint because 
15

Moreover, Ms. Frinks’s counsel’s readiness at trial to discuss the time periods 

relevant to statutory and common law adverse possession, as well as prescriptive 

easement, and to quote our Supreme Court’s decision in Cumulus, 226 S.W.3d 366, 

demonstrates that counsel was aware of the potential defense and, in fact, engaged in a 

counter-defense without raising an objection that Ms. Horvath had not originally pled 

adverse possession. In addition, counsel subsequently cross-examined Ms. Horvath 

regarding the placement of her newer, larger dock in a manner clearly designed to 

determine whether her possession had been continuous and uninterrupted, an element of 

adverse possession. See Cumulus, 226 S.W.3d at 376. We conclude that inasmuch as 

Ms. Frinks knew of the evidence relating to adverse possession, did not object to the 

evidence, and was not prejudiced by the introduction of such evidence, the affirmative 

defense of adverse possession was tried as an issue by implied consent. See Hiller, 915 

S.W.2d at 804. 

We note that Ms. Horvath, acting pro se, did not request to amend her answer to 

add adverse possession as an affirmative defense. However, in ruling on the theory of 

adverse possession, the trial court impliedly exercised its discretion to find that the 

defense had been tried. See Tenn. R. Civ. P. 15.02 (providing that failure to amend a 

pleading to include issues tried by express or implied consent “does not affect the result 

of the trial of these issues”). In any event, we determine that Ms. Frinks waived any 

objection to the defense of adverse possession by failing to raise an objection before the 

trial court. See, e.g., C & W Asset Acquisition, LLC v. Oggs, 230 S.W.3d 671, 679 (Tenn. 

Ct. App. 2007), perm. app. denied (Tenn. May 14, 2007) (“[The plaintiff] raised no 

objection to the trial court’s decision upon the ground that it was based upon an 

affirmative defense not raised in accordance with Rule 8.03, nor did [the plaintiff]

otherwise object to [the defendant’s] failure to comply with that Rule, and it is wellsettled that an issue not raised in the trial court will not be entertained on appeal.”). 

B. Finding of Adverse Possession

In dismissing the instant action, the trial court in its final judgment made the 

following specific findings of fact in pertinent part:

[I]t appearing to the Court that Donna Frinks owns the property below 

contour 1002, adjacent to the property of Horvath consisting of 5.9 acres, 

and designated as Map 78, Parcel 1.01 on the tax rolls for Jefferson County, 

 

the date of filing was illegible on the copy originally in the record. As Ms. Frinks noted in the relevant 

motion, however, the trial court’s Rule Docket Report reflected the date of the complaint’s filing. Our 

analysis of this issue is not affected by the illegibility of the filing date on the copy of the complaint first 

submitted to this Court. 
16

Tennessee, and it further appearing to the Court that Horvath has had a 

dock adjacent to her property, located on the property of Donna Frinks 

when water levels are down and floating above it when the waters are high 

since 1992, and it further appearing to the Court that although Donna 

Frinks had no knowledge of the trespass because she resides either in the 

State of Florida and near Sweetwater, Tennessee, the Court finds that she 

should have known of the trespass by Horvath and by taking no action for 

more than twenty (20) years since the onset of the trespass by Horvath, that 

Frinks has acquiesced in the trespass; the Court further finds that the 

Horvath possession was continuous and uninterrupted even when the dock 

was floating above the Frinks property, even though Horvath concluded she 

did not possess against Frinks when her dock was floating[.]

We note at the outset that on appeal, Ms. Frinks characterizes the trial court’s 

finding as one of an “easement by prescription” based on adverse possession. However, 

the trial court did not use the term, “easement,” in the final judgment. Our Supreme 

Court has described “prescriptive easement” as “[a] doctrine related to adverse 

possession,” explaining that “[g]enerally, this easement arises when a use, as 

distinguished from possession, is adverse rather than permissive, open and notorious, 

continuous and without interruption, and for the requisite period of prescription.” 

Cumulus, 226 S.W.3d at 378 (quoting Ralph E. Boyer, Survey of the Law of Property

569-70 (3d ed. 1981)). The “primary distinction” between the doctrines of adverse 

possession and prescriptive easement “is that the adverse possessor occupied the land of 

another, whereas, in prescription, there is merely adverse use of the land of another.” 

Cumulus, 226 S.W.3d at 378 (emphasis in original). “The requisite period of time of 

continuous use and enjoyment for a prescriptive easement is twenty years.” Id. at 379. 

In reviewing the trial court’s final judgment and oral ruling announced at the close 

of trial, we determine that the court did not conclude that Ms. Horvath had established a 

prescriptive easement. At the close of trial, the court stated the following in pertinent 

part:

[T]he Court, of course, finds that through inadvertence, whatever it might 

have been, all of Ms. Frinks[’s] property was not liquidated back at the time 

they thought they were liquidating it and she does, in fact, still own the 

property that she claims in the pleadings is hers, but the facts of Mrs. 

Horvath’s case are such that the Court believes that she has had her dock 

there for a sufficient amount of time, be it seven or 20 years to acquire a 

right to maintain the dock.
17

The Court is not going to pass on whether or not she has a valid 

permit or not, but the Court does think that she has a sufficient right 

acquired by the passage of time to at least apply for a permit and an 

easement to maintain her dock, but the Court acknowledges that Mrs. 

Frinks does, in fact, own the land under the water where that dock is.

Mrs. Horvath testified, and I believe told me the truth that she has 

had a dock out there since 1992, and I believe that is a sufficient amount of 

time. That is a long time. Now, [Ms. Frinks’s counsel], in connection with 

what you said about Mrs. Frinks didn’t really [know she] owned the 

property, therefore, it was hard for her to acquiesce, I think the law in 

Tennessee is that if you own property you are under a duty to know it, 

know its boundaries, manage it in a diligent manner, and she at least should 

have known that that dock was on her property because it was there for all 

the world to see, and I believe that that by operation of law is, in fact, 

acquiescence on the part of Mrs. Frinks because of the passage of so much 

time.

So the request for injunctive relief and damages against Mrs. 

Horvath would be denied by the Court and the Complaint in so far as it asks 

for relief against her would be dismissed.

* * *

I declare Mrs. Frinks to be the owner of the underlying property that she 

claims, but I believe that Mrs. Horvath has had a dock there a sufficient 

amount of time to acquire the right to leave it here.

We emphasize that “a court speaks through its orders and not through the transcript,” see 

Alexander v. JB Partners, 380 S.W.3d 772, 777 (Tenn. Ct. App. 2011), and we reiterate 

that the trial court did not use the term, “easement,” in its final judgment. Furthermore, 

even in comments made at the close of trial, the court’s only mention of an easement was 

in relation to whether Ms. Horvath had “a sufficient right acquired by the passage of 

time” to apply with TVA for a dock permit and “an easement to maintain her dock.” 

Moreover, in finding that Ms. Horvath had maintained a dock located on Ms. Frinks’s 

property “when water levels [were] down and floating above it when the waters [were]

high since 1992,” the court found that Ms. Horvath had “possessed,” or occupied, the 

relevant portion of the Disputed Property, rather than merely using it. We therefore 

analyze the trial court’s finding as one of adverse possession.
18

As to the time period of Ms. Horvath’s possession, Ms. Frinks asserts that the trial 

court erred by finding that Ms. Horvath had possessed the portion of the Disputed 

Property under her dock for the period of twenty years required for common law adverse 

possession. We agree with Ms. Frinks on this point. The trial court appeared to base its 

finding of “more than twenty years” on testimony related to the amount of time that had

passed by the time of trial in November 2015. However, the determinative time period 

tolls with commencement of the action. See, e.g., Boyd v. Ducktown Chem. & Iron Co., 

89 S.W.2d 360, 364 (Tenn. Ct. App. 1935), perm app. denied (Tenn. Jan. 11, 1936)

(analyzing a common law adverse possession claim from the time period “twenty years 

before the bringing of this suit”); Logan v. Estate of Cannon, No. E2015-02254-COAR3-CV, 2016 WL 5344526, at *10 (Tenn. Ct. App. Sept. 23, 2016) (analyzing a claim for 

common law adverse possession and noting that “the twenty-year period prior to 

commencement of the instant action began in February 1991.”). For her part, Ms. 

Horvath appears to misunderstand the tolling of the twenty-year period, but she 

acknowledges that she did not place a dock on the Disputed Property until the point at 

which she purchased her tract of land. The time period between Ms. Horvath’s 

acquisition of title to her property on November 14, 1992, and the commencement of this 

action on October 3, 2012, was nineteen years and forty-six weeks, six weeks short of 

twenty years. The trial court erred in finding that the requisite period for common law 

adverse possession had been met. 

Our analysis does not end here, however. In contrast to the common law form, 

certain statutory provisions regarding adverse possession require a seven-year period.

See Tenn. Code Ann. §§ 28-2-101 to -103 (2000); Cumulus, 226 S.W.3d at 376. Ms. 

Frinks asserts that statutory adverse possession is unavailable to Ms. Horvath because it 

requires color of title, which it is undisputed Ms. Horvath does not hold as to the portion 

of Disputed Property upon or over which her dock has been located. See Cumulus, 226 

S.W.3d at 376 n.3 (defining color of title as “‘something in writing which at face value, 

professes to pass title but which does not do it, either for want of title in the person 

making it or from the defective mode of the conveyance that is used.’”) (quoting 

Thompson on Real Property § 87.12, at 145 (David A. Thomas ed., 1994)). The warranty 

deed to Ms. Horvath’s property provides the following property description in relevant 

part:

BEGINNING in the center line of a road, corner with Tract No. 11 of said 

Subdivision; thence with the center line of said road, North 21 degrees 00

minutes West, 300 feet to a point in the center line of said road, corner with 

Tract No. 9 of said Subdivision; thence South 69 degrees 45 minutes East 

900 feet to a point in the 1002 contour line of Douglas Lake and a corner 

with Lot No. 9 of said Subdivision; thence in a Southerly direction with the 

1002 contour line of Douglas Lake, a distance of 375 feet with the 1002 
19

contour line of Douglas Lake; thence North 69 degrees 45 minutes East 815 

feet to the point of BEGINNING, and containing 5.9 acres, more or less.

Ms. Horvath’s relevant boundary line thus follows the 1002 contour line of Douglas 

Lake, the contour line below which Ms. Frinks’s property lies. Ms. Horvath 

acknowledges that prior to learning of Ms. Frinks’s claim, she had believed that the 

property between her boundary line and Douglas Lake was controlled by TVA and knew 

that it was not included in her title.

Although Ms. Frinks is correct in asserting that color of title is required to 

establish an affirmative defense of adverse possession pursuant to Tennessee Code 

Annotated § 28-2-102, she does not address the defense afforded, regardless of color of 

title, by Tennessee Code Annotated § 28-2-103, which “does not involve color of title” 

and “protects an adverse holder after a period of seven years but only as to that portion of 

the land in his actual possession.” See Cumulus, 226 S.W.3d at 376; Phelps v. Benke, 

No. M2015-02212-COA-R3-CV, 2017 WL 113965, at *6 (Tenn. Ct. App. Jan. 11, 2017)

(“Color of title is not necessary . . . to assert a defense under Tennessee Code Annotated 

section 28-2-103.”). Tennessee Code Annotated § 28-2-103 provides:

(a) No person or anyone claiming under such person shall have any 

action, either at law or in equity, for the recovery of any lands, 

tenements or hereditaments, but within seven (7) years after the right 

of action accrued.

(b) No possession of lands, tenements or hereditaments shall be deemed 

to extend beyond the actual possession of an adverse holder until the 

muniment of title, if any, under which such adverse holder claims 

such lands, tenements or hereditaments is duly recorded in the 

county in which the lands are located.

As this Court has explained:

Tenn. Code Ann. § 28-2-103 bars the right of the title owner to recover 

property that has been adversely held for more than seven years. Teeples v. 

Key, 500 S.W.2d 452, 456 (Tenn. Ct. App. 1973). The statute does not 

convey title, but may be used defensively by the adverse holder. It is “a 

defensive statute and protects the adverse holder in possession to the extent 

and upon the terms set forth in the statute.” Moore [v. Brannan], 42 Tenn.

App. [542,] 564, 304 S.W.2d [660,] 662 [(Tenn. Ct. App. 1957)]; see also 

Lemm [v. Adams], 955 S.W.2d [70,] 73 n.1 [(Tenn. Ct. App. 1997)] (stating 
20

that the statute provides a valid defense but does not entitle the adverse 

holder to a decree granting him title).

Michael v. Jakes, No. M1999-02257-COA-R3-CV, 2002 WL 1484448, at *13 (Tenn. Ct.

App. July 12, 2002), perm. app. denied (Tenn. Dec. 2, 2002); see also Vincent v. 

Johnston, No. E2013-00588-COA-R3-CV, 2014 WL 279682, at *17 (Tenn. Ct. App. Jan. 

24, 2014) (holding that, pursuant to Tenn. Code Ann. § 28-2-103 and despite no color of 

title, the defendant had established the defense of adverse possession to the extent that his 

improvements had adversely encroached upon the plaintiff’s property for a period of at 

least seven years).

We conclude that the trial court’s error in calculating Ms. Horvath’s adverse 

possession as “more than twenty years” was harmless insofar as Ms. Horvath could 

establish an affirmative defense by demonstrating adverse possession for a period of at 

least seven years pursuant to Tennessee Code Annotated § 28-2-103. We next address, 

within the scope of a seven-year time period, Ms. Frinks’s arguments that the trial court 

erred in finding adverse possession because (1) Ms. Frinks had no knowledge of her 

ownership of the Disputed Property until 2006 and no knowledge of Ms. Horvath’s dock 

until she subsequently viewed an aerial photograph and (2) Ms. Horvath’s possession was 

not continuous and uninterrupted. We note that the determinative seven-year time period 

prior to commencement of this action began on October 3, 2005. 

The trial court essentially found that Ms. Frinks was on record or constructive

notice, even prior to the 2006 telephone call she received regarding her property 

ownership rights, to realize that the Disputed Property was hers. We agree. This Court 

previously has explained:

As stated by this Court in Associates Home Equity Services, Inc. v. 

Franklin Nat. Bank, No. M2000-00516-COA-R3-CV, 2002 WL 459007 

(Tenn. Ct. App. 2002) per[m]. app. denied (Tenn. Oct. 21, 2002):

Notice may be imparted in several ways. There may be 

actual notice, which is the equivalent of personal knowledge 

on the part of the purchaser, or there may be record notice 

(sometimes called ‘constructive’ notice), deriving from the 

recordation of the prior instrument or something making 

reference to i[t]. Finally, there is a form commonly referred 

to as inquiry notice, which exists when the purchaser is in 

possession of information or facts sufficient to cause a 

reasonable person to make further inquiry as to the existence 

and content of the unregistered document.
21

Id. at *2 n.4 (citing Toxey H. Sewell, The Tennessee Recording System, 50 

Tenn. L. Rev. 1, 43-44 (1982)). 

Milledgeville United Methodist Church v. Melton, 388 S.W.3d 280, 290 (Tenn. Ct. App. 

2012), perm. app. denied (Tenn. Dec. 13, 2012).

Ms. Frinks testified that her mother grew up on the “land grant farm,” which was 

the farm across the river from the 488-acre farm that her grandfather eventually devised

to her mother. According to Ms. Frinks, the land grant farm, which had been devised to 

Ms. Frinks’s uncle, Robert Cowan, was submerged under water when TVA built Douglas 

Dam. As a young child, Ms. Frinks then moved with her mother and uncle to Monroe 

County, where they had purchased two farms. Ms. Frinks subsequently attended Duke 

University, began teaching in Florida, and met and married her husband in Florida. She 

had lived in Florida ever since except for vacations to a cabin she and her husband 

purchased in Monroe County. Ms. Frinks testified that in approximately 1986, her 

mother brought her and her family to visit the “home place” by Douglas Lake but that she 

did not return again until she received the telephone call regarding her ownership rights 

in 2006. Ms. Frinks stated that for her mother and uncle, the loss of the land grant farm 

“was just such an uncomfortable, bitter subject that they both just shut down when we 

asked anything about it.” 

Although we certainly recognize and respect Ms. Frinks’s family members’ 

painful history of relinquishing their land for construction of the Douglas Dam, this does 

not alter the fact that the deeds on record in the office of the Jefferson County Register of 

Deeds, copies of which were attached to Ms. Frinks’s complaint, were a matter of public 

record and available for her perusal at any time. We conclude that Ms. Frinks was on 

record or constructive notice of her ownership rights in the Disputed Property well before 

October 3, 2005. Moreover, given the subdivision of the nearby property into lakefront 

tracts in the 1950s and the open and obvious placement of Ms. Horvath’s dock on the 

Disputed Property in 1992, we conclude that Ms. Frinks was on inquiry notice that Ms. 

Horvath possessed a portion of the Disputed Property well before October 3, 2005. See

generally Bobo v. City of Jackson, No. W2015-00386-COA-R3-CV, 2015 WL 7890526, 

at *9 (Tenn. Ct. App. Dec. 4, 2015) (“‘Inquiry notice exists when a purchaser has notice 

of some fact that, in accordance with human experience, is sufficiently curious or 

suspicious that the purchaser should be obliged to make a further inquiry into it.’”) 

(quoting 77 Am. Jur. 2d Vendor and Purchaser § 385 (2006)). 

Ms. Frinks also argues that Ms. Horvath’s possession was not continuous and 

uninterrupted because Ms. Frinks installed a new dock at some point five to ten years 

prior to trial, resulting in “an interruption of her possession because no dock was present 
22

for up to several days.” Ms. Horvath asserts that as she was installing a new dock, the 

old one remained in place and that the two docks were essentially in the same location. 

During cross-examination of Ms. Horvath at trial, the following exchange ensued 

regarding Ms. Horvath’s replacement of the old dock:

Ms. Frinks’s Counsel: Was there a period of a day or two or whatever, 

a week, where the old one was gone and the 

new one wasn’t there yet? 

Ms. Horvath: Not really. It was basically just put a bigger 

one in there.

Ms. Frinks’s Counsel: Did some time go by?

Ms. Horvath: I think so. It’s been a long time.

Ms. Frinks’s Counsel: Well, it could have been anywhere from 

seconds to days or months?

Ms. Horvath: Oh, I don’t remember.

Ms. Frinks’s Counsel: Could it have been a few days?

Ms. Horvath: It could have, I don’t know. I can’t remember.

Ms. Frinks’s Counsel: But that would have been the last five or ten 

years, something like that?

Ms. Horvath: Probably.

The trial court declined to find that Ms. Horvath had abandoned her possession of the 

portion of Disputed Property under the dock while she replaced the old dock with a 

newer, larger one. Setting aside that the replacement of the old dock may have occurred 

more than seven years prior to commencement of the instant action, we also cannot 

conclude from this testimony that Ms. Horvath removed all dock material from the 

portion of the Disputed Property at issue for any length of time. We conclude that the 

evidence does not preponderate against the trial court’s finding in this regard.

Finally, Ms. Frinks argues that Ms. Horvath’s possession could not have been 

continuous and uninterrupted because it was seasonal in that the dock only rested on the 

land in months when the water levels were low. The trial court, however, expressly 
23

found that the possession “was continuous and uninterrupted even when the dock was 

floating above the Frinks property . . . .” We agree. Ms. Frinks has cited no authority in 

support of her assertion that Ms. Horvath’s occupation of the land underneath her dock 

would be interrupted by the rise of the water covering that land several months of the 

year. Ms. Frinks also stops short of arguing that she herself loses title to the Disputed 

Property below the 1002 contour line of Douglas Lake when the water levels are high. 

See generally State ex rel. Cates v. W. Tenn. Land Co., 158 S.W. 746, 752 (Tenn. 1913)

(“As these lands were . . . subject to private ownership before the formation of the lake

[by an earthquake], we are of opinion that the mere fact that they [monuments of 

boundary] have since become submerged by a body of navigable water does not deprive 

the owners of their title to the land as long as they [monuments of boundary] can be 

reasonably identified.”).9 Ms. Frinks’s argument regarding seasonality is unavailing. 

We conclude that the trial court did not err in finding that Ms. Horvath 

successfully established clear and convincing evidence of her exclusive, actual, adverse, 

continuous, open, and notorious possession of the portion of the Disputed Property under 

her dock, regardless of whether the dock was resting on the land or floating on the water 

above the land. Although we determine that the trial court erred in finding this adverse 

possession to be for a time period of at least twenty years, we further determine this error 

to be harmless because Ms. Horvath did establish the seven-year time period required for

the affirmative defense of adverse possession pursuant to Tennessee Code Annotated § 

28-2-103. We note that the trial court properly did not vest title of any portion of the 

Disputed Property to Ms. Horvath because she established only the shield of an 

affirmative defense by operation of the seven-year statutory limitation of action. See 

Michael, 2002 WL 1484448, at *13 (explaining that although Tennessee Code Annotated 

§ 28-2-103 “may be used defensively by the adverse holder,” the statute “does not 

convey title”); see also Lemm v. Adams, 955 S.W.2d 70, 73 n.1 (Tenn. Ct. App. 1997). 

V. Injunctive Relief

Ms. Frinks also contends that the trial court erred by declining to grant her request 

for an injunction ordering Ms. Horvath to remove the dock. Having determined that Ms. 

Horvath successfully established the defense of adverse possession, we further determine 

that the trial court did not err by dismissing Ms. Frinks’s request for injunctive relief 

upon the allegation of trespassing. In addition to claiming trespass, Ms. Frinks also avers 

 

9

For the purposes of review in this action, we do not find it necessary to address whether Douglas Lake is 

navigable in the “ordinary sense” or “legal sense,” with the latter indicating that the public would 

maintain an easement to use the waterway above the Disputed Property despite Ms. Frinks’s retention of 

title. See Webster v. Harris, 69 S.W. 782, 784 (Tenn. 1902), overturned on other grounds by State ex rel. 

Cates, 158 S.W. 746; City of Townsend v. Damico, No. E2013-01778-COA-R3-CV, 2014 WL 2194453, 

at *4-5 (Tenn. Ct. App. May 27, 2014). 
24

that Ms. Horvath has failed to comply with a TVA requirement to obtain a permit prior to 

constructing an “obstruction affecting navigation, flood control or public lands or 

reservations along or in the Tennessee River or any of its tributaries.” See 18 C.F.R. § 

1304.1 (including boat docks in a list of obstruction examples). The trial court found in 

its final judgment that it did “not have jurisdiction to direct that the Tennessee Valley 

Authority revoke [Ms. Horvath’s] permit, but [Ms. Frinks] may proceed through 

appropriate channels to nullify the permit.” We note that Ms. Horvath acknowledged that 

she had never applied for or obtained a permit for her dock. In any event, we agree with 

the trial court that inasmuch as TVA is not a party to this action, the trial court did not 

have jurisdiction to grant injunctive relief against Ms. Horvath on behalf of TVA. Ms. 

Frinks is not entitled to injunctive relief based on the instant action. 

VI. Conclusion

For the reasons stated above, we affirm the trial court’s judgment. This case is 

remanded to the trial court, pursuant to applicable law, for enforcement of the trial court’s 

judgment and collection of costs assessed below. The costs on appeal are assessed 

against the appellant, Donna Babb Frinks.

________________________________ 

THOMAS R. FRIERSON, II, JUDGE