1 After the A ppe llants filed thi s lawsuit, Mr. Ward passed aw ay. Therefore, M r. Ward’s heirs were substi tuted

as party p laintiffs. 

### IN THE COURT OF APPEALS OF TENNESSEE AT JACKSON October 15, 2001 Se ssion MYRTLE MAE DALY BROWN, ET AL 

### . v. NORMA JEA N BELTON DALY

Direct Appeal from the Chancery Court for Shelby County No. 97321-2 Floyd Peete, Chancellor

No. W2001-00953-COA-R3-CV - Filed December 14, 2001

Th is ap pe al in vo lv es th e d is pu te d o wn er sh ip of re al pr op er ty. Appellee claims title to the land by prescription, or in the alternative, under the doctrine of l aches. After a jury trial, the trial court entered a judgment in favor

of Appellee. App ellants assert that t he tri al cou rt erre d by admit ting a check into evide

nce as pr oof that A

ppellee ’s predecess or in in terest lived on the property without the permissi on of A ppellants. We agree that the trial court err ed by admitting the c

heck, but we affirm t he judg ment of the

trial cou rt beca use the record contains material evidence to support the jury’s finding s and corresponding verdict.
Tenn. R. App.P. 3 Appeal as of Right ; Judgment

of the Cha

ncery Court Affi rmed; and Remanded

D AVID R. F ARMER , J., delivered the opinion of the cour t, in which A LAN E. H IGHERS and H OLLY K. L ILLARD , J.J., joined.

G. Keith Rogers and Lar

ry K. Scr oggs, Collie

rville, T ennessee, for the appell ants, Myrtle Ma e Daly Brown, Willie Myrle Daly Cruse, Mary Elizabeth Daly Wolfe, a nd T. J. Ward.

Joe M. Dunca

n and R. Porter

Feild, Memphis, Tennessee, for the appellee, Norma Jea n Belton Daly.

OPINION

In June 1989, Myr

tle Mae D aly

Brown, Willie My

rle Daly Cruse, Ma

ry Eli zabeth Dal y Wolfe, and T.J. Ward (Appellants) filed suit against Norma Jean Belton Daly (Appellee) claiming that they eac h own an undivid

ed one-f ifth inter est in ce rtain re al prope

rty located in Eads, Tennessee,
as the chi ldr en a nd s urv iving he

irs of E arl J. Daly (Father) who died on August 7, 1966. 1 Appellan ts sought to have the property

partitioned and sol d pursuant to sections 29-27-101 to -219 of the TennesseeCode. Further, Appellants asserted that Appellee is the rig htful owner

of the remaining2 Son was the brother o f App ellants. Son an d Ap pellants w ere Fathe r’s childre n and only livi ng heirs when

Fath er die d.
-2- one-fif th interest as the widow and a wi ll beneficiary of Earl W. Daly (Son). 2 Appellee filed an
answer and coun terclaimcontending that

Son was the

sole owne

r of the s ubject pr

operty at the time of Son’s dea

th and tha

t th e land passed to Appellee under the terms of Son’s will. Therefore , Appellee argued, she is the lawful owner of the propert y in fee simple. Appellee stated in her answer andcounterclaim that

Son acqui

red the p roperty by transfer

from Father to Son or, in the alternative, by prescr iption. Appellee also asserted the defense of lache s.

This matter ha s come before thisCourt on two earlier occasions. On the first appeal o f this case, this Court held that A ppellant s were entitled to a trial by jury. Brown v. Daly , 884 S.W.2d 121 (Tenn. Ct. App. 1994). Upon remand, the trial court entered judgment on a jury

verdict finding that all right , title and

interest in the pro

perty were ve sted in the

Appellee and dismiss ed Appellants ’ complain t. Appellan

ts appea led that d

ecision, asserti ng that the trial cou rt erre d in cert

ain evidentiary

rulings. I n Brown v. Dal y , 968 S.W.2d 814 (Tenn. Ct. App. 1997), we reversed the decision of the trial court and remanded for a new tria l. In reversing

the trial court’s decision, we held that “where a co-tenant is claiming title by prescription . . . , statements made bythe other cotenant( s) granting him permission to remain on the property a

re not inadmissible hearsay but have legal significance and

effectuate legal consequences . . . .” Id. at 818. Further, we held that a check offered by A ppellee to illustra te the transfer of title from Father to Son was improper ly a dmitted int

o evidence to “represent an instrument of conve yance or transfer of title.” Id. at 819.

As the result of our holding in the seco nd appea

l of this ma

tter, App ellee did

not arguethat Son acquired the property from Father by

virtue of a

conveya nce or trans fer of ti

tle. At the third tria l, Appellee argue d that Son a cquired titleto the property by

prescription and asserted that laches barred Appellan ts’ claim. Upon the conclusion of the proof, the jury found in favor

of the Appelleeunder both theories. As a result of this decision, Appellants again require our review of the case.

At trial, the parties put forth the fol lo win g pr oof . In June 1964, Father purchased 29.09 acres of real estate lo cated a

t 700 Reed

hooker Ro ad for a

pproximate

ly $6500.00. After Father purchased the land, a ho

use was tr

ansported to th e property . S hortly therea fter, Son moved into the house. Appellan ts assert that Father lived in the house with Son, but Appellee offered pr oo f t o t he co nt ra ry. It is un disputed that Father was in the house when he died on Aug ust 7, 1966. As Father di e d intestate, his heirs w ere Son, Ms. Brown, Ms. Cruse, Ms. Wolfe, and Mr. Ward. After Father died, Son remained on the property and made several improvements to the real estate.

Son married Appellee in 1969. After they were ma rried, A ppellee moved into

the house locatedon the property. During their marriage, Son and Appe llee m ade add

itional imp

rovemen ts to th e p ro pe rt y, paid all real estate taxes on the property , and paid off a note that was secured by

the property. Appe

llee and Son lived together on the property until Son died in 1988.3 Ru le 403 st ates as f oll ows: “Al though re levant , evi dence may be e xclu ded if its prob ative v alue is substan tially outw eigh ed b y the dan ger o f un fair pr ejud ice, co nfu sion o f the issu es, or m isleadin g the jury, or b y consi derations of undue del ay, was te of ti me, or need less pre senta tion o f cum ulative evid enc e.” Tenn. R. Evid. 403.

-3- Son died testate, leaving the property on

700 Reed H ooker Roa

d to Appellee unde

r the ter ms of his will. Appellee continues to reside on the property and has maintained it as her home since her 1969 marriage to Son.

As a result of the jury

verdict in fa vor of Appellee, Appellants raise three issues for our review. These iss ues, as st ated by Appellan ts, are a s follows:

I. Whether the trial court erred by admitting into evidence a check dated May 10, 1966, drawn on the Union Planters Bank Account of Earl W. Daly (Son) in the amount of $1,521.49 payable to Earl Daly (Father)?

II. Whether

the trial court erred

in submitting to the jury the question of whethe r Plaintiff s/Appella nts had wai ted to o lon g to clai m their und ivided inte

rests in 700 Reed Hooker Road, Eads, TN?

III. Whether the verdict was contrary to the weight of the evidence?

As this appeal is the result of a jury trial, our r

eview is limited to a determination of whether there is material evidence to support the jury ’s verdict. Tenn. R. App. P. 13 (d); Reynolds v. Ozark MotorLines, Inc. , 887 S.W.2d 8 22, 823 (Tenn. 1994 ). If materia l evidenc e exist s to suppor t th e jury’s verdict, the corresponding judgment will not be disturbed on a ppeal. Reynolds , 887 S.W.2d at 823. Further, on an appeal from a jury verdict, we do not determine the credibility of witnesses
or weigh the evidence. Id. With respect to the trial court’s legal c onclusion s, however, our review is de novo with no presumption of correctness. Bowden v. W ard , 27 S.W.3d 913, 916 (Tenn. 2000).

In their fir st issue, A

ppellant s assert that the trial court erred by admitting a check

from Son to Father into evidence. Son issued the check to Fa ther in the amount of $1,521.49. T he che ck stated that it

was “pay ment in full for all interest in 29.1 acres at 700 Reed Hooker Road.” A s the check was at issue in the previous appeal of this case, each party

filed a motion in limine regarding the admission of

the chec k into evid

ence. U pon consid

eration of the pa rties’ me moranda , their statemen ts at the he aring, this Co urt’ s previous ruling, and the record, the trial cour t granted Appellee’s motion in limine to admit the check. The court stated that “[t]he check shall be allowed into evidence to negate the contention that Ear l Daly, Son, sought per

mission from Plaintiff

s to remain living on the land. The check may be offered to show the state of mind of Earl Daly , Son.” Shortly before Appellee

introduc ed the ch

eck into e

vidence at trial, Appellan

ts renew ed their objection. Appellants argued that the check wa s not relevant, and further, if the court determined the check was relevant, Appellants arg ued that the check should be excluded under rule 403 of the Tennessee Rules of Evidence. 3 Again, the court overruled Appellant’s objection and admitted the-4-

check into evide

nce. I n an eff ort to alle viate jur y c onfusion r

egard ing the c heck, the court gave a limiting instruction to the jury. The court instructed the jury that
[c]heck number 055 has been admitted as evidence to only show the state of

mind of Earl W. Wesley [sic], the son, regardi ng whether he sought permission from the plaintiffs in order

to continue living on the property at 700 Reed Hooker Road after the death of Earl Daly , the father. Check number 05 5 does n ot represent an instrumentof

conv eyanc e or a transfer of title from Earl Daly , the father, to Earl Da ly, the son. And you may not consider the check as being a m emorandum of contract or agreement between Ea rl Daly, the fa

ther, and Earl Daly , the son. The check may be consid

ered by you as evidence to show the state of mind of Earl Wesley Da ly. You may consider this evidence when determining whether Ea rl Wesley Daly thoug

ht he owned 700 Reed Hooker Road or whether he w as living on the land with permission of the plaintiffs.

The central issue i n Appellee’ s argument that Son acquired the title to the property by prescription was whether Appellants gave permission to Son to remain on the land. In the second appeal of this case, we stated that “a presumption of title may arise by

an exclusive and uninterrupted possession of the land by one te nant in common for twenty or more y ears, c laiming t

he same as his
own without any

recognition of his co-tenants or claim upon their part.” Brown v. Dal y , 968 S.W.2d 814, 817 (T enn. C t. App . 1997 ) (cit ing Morgan v. D illard , 456 S.W.2d 359 (Tenn. 1970). One may rebut the presumption “by fa

cts showing that the possession was not adverse but by the indulge

nce, permission, or as tenant of the owner.” Id. Therefore, the elements that arenecessa ry to establi sh title by prescr iption are as follow s:
(1) The prescriptive ho lderhas been in exclusive and uninterrupted possession of the land in question for more than 20 years, claiming the same as his
own without any acc ounting to his co-tenants or claim on the ir part – they being under no disability to asser t their ri ghts.
(2) The holder’s occupancy of the property

in question was withoutthe actual or implied

permissio n of the ot

her co- tenants.

Id. (quoting Livesay v. Keaton , 611 S.W.2d 5 81, 583 (Tenn. Ct. Ap p. 1980)) . Both el ements mus t be proven for the doctrine of title by prescription to apply. Id.

As an initial matter, we must discuss the standards for reviewing a trial court’s evidentiary decision s. The trial court has a great dea l of discretion when considering the admission or exclusion of evidence. White v. V

anderbilt U

niversity , 21 S.W.3d 21 5, 222 (Te nn. Ct . App . 1999); Tire Shredders

, Inc. v. ERM-North Central , 15 S.W.3 d 849, 859 (Tenn. Ct. A pp. 1999) . Appella

te courts ma y review a

trial cou rt’s disc retiona ry decision s, but that

review i s with lessappella te
sc ru ti ny. White , 21 S.W.3d at 222. If the discretionar ydecision

is within a

range of acce ptable alterna tives, appella

te court s will not su

bstitute t heir decision for t

hat of the

trial cou rt simply4 It is undis puted t hat Appel lee est abli shed the fi rst ele ment of ti tle by prescri ption. Appellee est ablis hed that Son held t

he la nd for more t

han 20 year s whil e cl aiming t he la nd as his o wn with out a ny a cco untin g to Appell ants or claim on th eir part . Addi tional ly, Appell ee est ablis hed that Appell ants were not under any disabil ity t hat prohibi ted Ap pellants from asserting their righ ts.
-5- because the appe llate cou rt would hav e chosen a different alternative. Id. at 22 3. Ac co rd in gl y, appella te co urts will not interfere with a trial court’s evidentiary rulings absent a clear abuse of discretion. Tire Shred

ders, Inc . 15 S.W.3d at 858.

A trial court

must use conscientious judgment when making discretionary decisions. White , 21 S.W.3d at 223. The court must consider the applicable law along with the f acts bef ore the c ourt. Id. A discretionary decision will be set aside only when the tr

ial court misconstrued or misapplied the controlling legal principles or acted c ontrary to the subs tantial w eight of the evidence. Id. Therefore, an appellate court will review a trial court’s di scretiona ry decision to deter mine: “(1) whether the factual basis for the decision is supported by the evidenc e , (2) whether the trial court identified and applied the applicable legal princi pl es, and ( 3) whether the tr ial cour t’s decis ion is within the range of acceptable alternatives.” Id.
Appellan ts assert that the check was not relevant to determine whether Appellants gave Son permission to remain on the prop er ty after Father’s death. Rule 401 of the Tennessee Rules of Evidence defines relevant evidence as “evidence having any tendency to make the existence of any fact that is of c onseque

nce to the determin ation of th

e action more pro bable or less prob able tha

n it would be without the evidence.” In the present case , the determinative fact in the prescription issue is whether Appellants gave Son permission to live on th e p ro pe rt y. 4 At trial, Appellants stated that they met with Son

after Father di ed and g ave Son pe rmissio n to live on the property. Appe llee offered the check as evidence that the Appellants did not give Son permission to live on the pr op er ty. To support the trial c ourt’s decision to admit the check into evidence, Appellee argues that the check illustrates that Son did not have the state of mind to seek permission to live on the farm because Son thought he already

purchased the farm from Father . Consequently, Appellee a sserts that the check makes it le ss probab le that Son request ed permi ssion or r

eached an agr eement with Appellants.
Appellee’s argument

misconstrues the issue and the corresponding element of pre scription. As we state d in th e sec ond appeal of this case, in order for Son to have ac quired the property by prescription, Son must hav e possess ed the pr operty “without the actual or implied permission of the other co-ten ants.” A ccordingly , the prop er inquir y iswhether

Appellan ts gave Son permis sion to live on the property. A s we are concerned with the actions of Appellants, Son’s state of mind three months prior to the death of Father is not relevant to determine w hether App ellants gave Son permission to remain on the property a fter Father’s death. The check from Son to Father does not make it less probable that Appellants gave Son permission t o live on the land. The trial court misapplied the controlling legal principles in making its evidentiary decision. Therefore, as the check wa s i rr el ev an t t o d et er mi ne wh et he r A pp el la nt s g av e S on pe rm is si on to li ve on th e p ro pe rt y, we conclude that the trial court erred by admitting the check into evidence.-6-

The trial cou

rt’s err or in admitting

the chec k, howeve

r, does not require

this Court to

revers e the disposition of

the present case. The Tennessee Rules of Appellate Procedure

provide that “[a] final judgmen

t from whi ch relie

f is avail able and

otherwis e appropr

iate sha ll not be se

t aside un less, considering the whole record, error involving a substantial right mo re proba bly than not affected the judgment or would result in prejudice to the judicial process.” Tenn. R. App. P. 36(b). The burde n is on the complaining party to show that the error was prejudicial. Bishop v. R.E.B. E quipment Serv. Inc. , 735 S.W.2d 449, 452 (Tenn. Ct. App. 1987). In Bishop , we also stated that
[o ]r di na ri ly, an error in admitting evidence is har mless if the fact shown by the offending evidenc e is also shown by other evidence in the rec ord which is compe tent. If it appears to the reviewing court from a n examination of the whole record that the verdict is unlikely to be differe

nt in the event of a

retrial, the error must be considered to be har mless.

Id

. (quot ing Love v. Smith , 566 S.W.2d 876, 879 (Tenn. 1978) (citations omitted)). We have examined the whole

record in this case. From our review, we cannot say that the e

rror in admitting the check more probably

than not affected the jury verdict and the corresponding judgment.

As we stated in the second appeal of this case, af ter the person claiming title to the land by virtue of the doctrine of prescription establishes that “[t]he prescriptive holder has been in exclusive anduninterrupted possession of the la nd inquestion for more than 20 y ears, claiming the same as his own with o ut any acc ounting to his co-tenants or claim on their part -- they being under no disability to assert their rights,” a presumption of title may arise in favor of the possessor of the land. Brown v. Daly , 968 S .W.2 d 814, 817 (T enn. C t. App . 1997 ) (quo ting Livesay v. Keaton , 611 S.W.2d 581, 583 (Tenn. Ct. App. 1980)). This presumption may be rebutted by evide

nce that the possession
was by the permission or indulge nce of the other co-tenants. Id

. Acc ordingl

y, a fter the party claiming titl e to th e land throu gh prescription establishes the presumpt ion in their

favor, t he party arguingagainst title by pr escription has the task to rebut the pr esumption through evidence illustrating that the possession of the land was with the permission of the other co-tenants.

In order to show Son had Appellants’ permission to live on the land, Appellants testified that they met with Son

after Father’ s death a

nd told Son th at he cou

ld remain on the land. This testimony provides a basis to rebut the presumption that Son acquired the p ro pe rt y by t he doctrine of prescription. Further, this testimony is direct e vidence that

Appellants gave Son permission to live
on the property, a s it “does not requi re infe rencesfor its re

lationship to the fac t to be pro ved.” Ne il P. Cohen, Tennessee Law of Evidence § 4.01[5] (4 th ed. 2000).
Appellee offered no direct evidence to contra dict App ellants a ssertion that they g ave Son permission to live on the land. Instead, Appellee of fered circumstantial evidence that Son lived on the land without the permission of Appellants. Appellee’s evidence included the check that the trial court erroneously a

dmitted into evidence. In addition to the check, Appel lee offered further cir cumstantial ev id en ce to su pp or t h er cl ai m. To il lu st ra te th at So n l iv ed on th e p ro pe rt y w ithou t the permission of Appellants, Appellee put forth evidence illustrating the various improvements Son-7-

made on the property. A

fter Son married appellee in 1969, they enlarged the kitchen, built a gar age, converted the ol d garage into a master bedroom and bath, and constructed a g ame room. Further, the coup le built a b

reez e way, a utility

room, and a deck. Son and Appellee placed a hot tub on the deck. Additionally, they

constructed a barn, a tractor shed, a nd a chicken house. Son and Appellee also enlarged two of

the ori ginal bedrooms and constructed walk-in closets there in. Finally, the couple convert ed a chic ken house into a small guest house that contained two bedrooms and a bath. Appellee testified that she and So n paid for the improvements, and further, that they made the improveme

nts withoutconsultin g Appellants. App ellee a lso establish

ed that Son

made an e

ffort to devise the property to Appe

llee under the terms of his will. Son’s will con tained a pro vision devising all of Son’s r

eal prop erty

to Appellee including “the house and land a

nd all impr

ovements at 700 Reed Hooker Road, Eads, Tennessee. . . .”

Whether Appellants gave Son permission to live on theproperty wa s a material fact left for the jury to d ecide. Parties may prove any ma

terial fact by

direct or circumstantial evidence. Marshall v. Jackson & Jones Oils, Inc. , 20 S.W.3d 678, 683 (Tenn. Ct. App. 1 999); Knapp v. Holiday Inns, Inc. , 682 S.W.2d 936, 944 (Tenn. Ct

. App. 1984). A jury may utilize circumstantial evidence to reasonably infe r the facts at issue in a particular case. Martin v. Washmaster Auto Ctr., U.S.A. , 946 S.W.2d 31 4, 317 (Te nn. Ct. App . 1996); Neil P. Cohen, Tennessee Law of Evidence § 4.01[5] (4 th ed. 2000). Further, a party to a lawsuit can satisfy the ir burden of proof

regardless of whether the preponderance of the evidenc e is based on circumstantial or direct evidence. Aetna Cas. & Sur. Co. v. Parton , 609 S.W.2d 518, 520 (Tenn. Ct. App. 1980); Cohen, supra at § 4 .01[5 ].

In the present case, Appellants offered dir ect evidence to rebu t the pre su mption that Son acquired the property throug

h p res cription. Appellee offere d releva

nt circumstantial

evidenc e to counter Appellants proof. We are of the opinion that the jury could have relied upon Appellee ’ s circumstantial evidence to reasonably infer Son occupied the property without Appellant’s permission. The evid

ence illu strates Son’s state of mind after Appellants claimed to give Son permission to live on the

propert y. T he evide nce per mits an inference that Son did not believe he
was occupying

the land with Appellants pe rmission. Accordingly , the jury could have utilized Appellee’s properly a

dmissible circumstantial evidence to refute Appel lants’ assertion th at they g ave Son permission to live on the property.

Unlike the chec

k, this evi dence isreleva

nt to make

it less pro bable tha t Appella nts gave Son permission to live on the property. I t is reasonable to i nfer tha t S on would not have made the exten sive improvem ents to the property ha d he been living there merely with the permission of Appellan ts. Further, a jury

could infer that Appellants did not give Son perm ission to live on the propert y from the f

act that S on faile d to ask pe rmissio n fro m Appellants to improve the land. Fi na ll y, it is reasonable to infer that Appellants did not give Son permission to live on the propert y from the fact that Son attempted to de vise the property to Appe llee. In contrast to the chec k, the improv ements and th e will provide evidence that Appellants did not take the affirmative step of giving Son permission to remain on the property. A ccordingly , this circumstantial evidence i s material evidence that Appellants failed to give Son permission to live on the property. The refore, under our standard of review, we cannot distur b the trial court’s judgment. There is material-8-

evidence to support the jury’s verdict, and the trial court’s error in admitting the check

into evidence likely did not affect the jury’s decision.

Our determination that the trial court erred in admitting the check into evide

nce pre termits Appellant’s issue of whether the check was improperly ad mitted as hearsay . Further, as we have concluded

that Appe

llee pro duced ma

terial evidence

to support

a jury finding tha

t Son acquiredthe propert y by the doctrine of

prescription, th e issue of whether Appellants’ claim was barred by the doctrine of laches is likewise pretermitted.

Ac co rd in gl y, we affirm the decision of the trial court. The costs of th

is appeal a

re taxed to Appellan ts, Myr tle Mae D aly

Brown, Willie My

rle Daly Cruse, Ma

ry Elizabeth Daly Wolfe, and the successors of T. J. Ward, and their surety , for which execution may issue if ne cessary

.

___________________________________ DAVID R. FARMER, JUDGE