### IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE March 29, 2001 Sessi

on

AUDIE LOWE, ET AL 

### . v. BILL GOAD, ET AL 

### .

Appeal from the Chancery Court for Scott County No. 8289 Billy Joe White, Chancellor
FILED JUNE 22, 2001

No. E2000-02056-COA-R3-CV

Audie Lowe, Hilda L

owe, and Sheilda M

ills (“Plaintiffs”

) brought this bou

ndary line s

uit against membe rs of their family, Bill Goad, Mattie Goad, Eugene Olmstead, and Mae Ol mstea d (“Defendants”). Plaint i ffs allege the ir predecessor

-in-title, Arlie O

verton, had an ag

reement with Defendants’ predecessor-in-title, Sherman Over ton, t hat a fence (“Fence”) would serve as the boundary line. Plaintiffs’ deeddoes not include the disputed area up to the fence. After a trial, the Trial Court di smissed Plai ntiffs’ complaint, holding that the Fence was not the boundary line by agreement or a

cquiescence. Pl

aintiffs appeal.

We affirm.

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

D. M ICHAEL S WINEY , J., delivered the opinion of the court, in which H ERSCHEL P. F RANKS , J., and C HARLES D. S USANO , J R ., J., joined.
Stephen A. Marcum, Huntsville, Tennessee, for the Appellants, Au die Lowe, Hilda Lo we, and Sheila Mills.
Johnny V. Dunaway

, LaFollette

, Tennessee, for

the Appellees, B ill Go ad, Mattie Goad, Eugene Olmstead and Mattie Olmstead.1 For clarity’s sake and to minimize confu sion, we ref er to Sherma n Overto n and his two sons, Arlie and Arvil, by their first name s only.

2 The record on appeal make s no menti on of the disposit

ion of Pla

intif fs’ r emaining

altern ative c laim of prescriptive easement.

-2- OPINION
Background

This matter involves a boundary line dispute between family me mbers over anarea consisting of approximately 9 acres (“Dispu

ted Area”) loc

ated in Scott County. The Disputed Area is a wooded, mountainous are a lo cated adjacen t to another parc

el of property

that is primarily pastureland. The parties to this litigation are the children and grandchildren of Sherman Overton and their spouses. Sherman is the father of Arlie Overton, Arvil Overton, Mae Olm stead and Mattie Goad. 1 The Plaintiffs ar e Arlie’s daug

hters, Sheilda Mi

ll s and Hilda Lowe, and Hilda Lowe’s husband, Audie Lowe. The Defendants are Sherman’s daughte rs, Mattie Goad and Mae Olmstead, and their spouses, Bill Goad and Eugene Olmstead.

In 1942, Arvil purchased two parcels o f property near his father

’s farm in Scott Cou nty. Thereafter, in 1962, Arvil sold a portion of this land to his fathe

r, Sherman, and th

e rest to his brother, Arlie. Sherman, who died in 1980, is the Defendants’ predecessor-in-title. Arlie is the Plaintiffs’ predecessor-in-title. The parcels enc ompass pastureland and the Disputed Area and were separated by an old fence

(“Fence”) w

hich was replac

ed by Arlie

and Arvil sometime

near the time of the transfer. By deposition, Arvil testified that his father wanted the pastureland

for himself and wantedArlie to have the w ooded, mountainous

area. Accordi

ngly, Arvi l sold the parcels to Sherman andArlie. Arvil, however, admitted that he did not change the legal description in the deeds that he received when he purchased the two parcels in 1942. The deed that Sherman received

from Arvil apparently

did not state the amo

unt of acreag

e inhis parcel, but Arvil testified that he sold Sherman between 8 and 10 acres. Arlie’s deed showed that he received 25 acre s from Arvil.

In 1984, Arlie deede

d his 25 acre parcel to his son, Dennis. In 1985, Dennis deeded the 25 acres to Plainti

ffs. In 1998, Plaintiffs filed this Complaint for Declaratory Judgment, alleging that they were the ow

ners of th e Disputed Area under the theories of adverse possession and prescriptive easement. Plaintiffs agreed, at trial, to dismiss their adverse possession c laim bu t proceeded

under the theo ry that the Fence was the boundary line by agreement or acquiescence betweenArlie and Sherman. 2 Arlie, Arvil and th e Defendants pr

ovided testimony

at trial via dep osi tio n on ly.

The record on appeal shows that Arlie and Arvil testified that the F e nce was the boundary line and that Arlie

and Arvil restric

ted their use of th

e land to their

respective sides of the Fence. On the other hand, Defendants testified that they never knew the loca tion of the boundary line and that Arlie’s and

Sherman’s use of the property was not restricted to one side of the Fence

or the other. It is, however, undisputed that Plaintiffs have no deed covering the Disputed Area. It3 The record on appeal does not conta

in any c lear in dicati on of the third par

ty’s relati onship t o the part

ies or how he ob tained kno wledge ab out the poin t.

-3- also is undisputed that in e arly 1999, le

ss than one month af

ter Plaintiffs file

d their complaint, Arlie gavea warranty deed (“1999 Warranty Deed”) to Defen d ants covering the disputed area. Add iti ona lly, one of the Defen dants, Mattie Goad, testified that approximately two years prior to the instant litigation, Arlie asked some of the family members to give the Disputed Area to him via a quit claim deed.

Moreover, sometime prior to th is lawsuit , a partition acti on ( “Partition Action”) regarding Sherman’s farm was brought between Sherman’s children. The re cord on appeal in

this matter provides sketchy information regarding the Part it ion Action and does not contain any pleadings or

a judgment from

the Partition Action. The Trial Court, however, in its Opinion, found that a consent judgment in the Partition Action had been entered betweenthe parties in whic h Arlie andArvil participated. The consent judgment and a corresponding deed placed the Disputed Area int o Sh erm an’s pro pert y.

At trial, each side presented exper t witness testimony from land survey

ors. Both surveyorsagreed that Pl

ai ntiffs’ deed does not cover the Disputed Area. Plaintiffs’ surveyor, RichardReece (“Reece”), testified that the calls of the deeds involved did no t close but tha t he lo cated the 25 acre plot that is covered in the deed that Plaintiffs received from Dennis. Reece testified that he examined the Fence and found that it skirts three sides of the Disputed Area and had been built on Arlie’s side instead of Sherman’s side. Reece agreed that its appearance was consistent with a fence that had been standing for 30 year s but that it had been maintained.

Defendants’ surveyor, Jerr y Crutchfield (“Crutchfield” ), performed two surveys. The first survey (“F

irst Survey”

) apparently

was prepared for

the earlier Par

tition Action and re

sulted in

a finding that the Disputed Area belonged to Arlie. Like

Plaintiffs’ surveyor, Crutchfield testified that the calls of the deeds involved did not close and further testified that most of the landmarks or points were no l onge r on the pro pert y. After submitting the First Survey

to the court in the Partition Action, Crutchfield rec

eived a telephon

e call from a thir

d-party who advise d Crutchfield abo ut a pointtha t ha d be en m iss ed i n th e Fir st S urv ey. 3 Using this point, Crutchfield re-surveyed (“Second Survey”) and concluded tha t Arlie’s proper

ty did not include the DisputedArea. In expla ining his conflicting findings, Crutchfield testified that the First Survey was a mistake and that he felt more comfortable

with the Second Survey. Moreover, Crutchfield reviewed the 1999 Warranty Deed

that Arlie had given to Defendants and concluded that it covered the Disputed Area.

The Trial C

ourt, i n its Ju dgm ent, dismissed Plaintiffs’ Complaint and found that Defendants

were the owners of the Disputed Area. In its Opinion, which was incorporated into the Judgment, the Tria

l Court held that it

didnot give grea

t weight to Arlie’ s testimony be cause Arlie testified tha t he had dif fic ult y w ith his me mory since he had suffered a stroke. The Trial Court further held that since Plaintiffs had no deed to the Disputed Area, their only claim was based upon the parties’ predecessors’ alleged agreement regarding the boundary line. Citing Arlie’s transfer of4 In their Answer, Defendants assert ed a defense of res judicata , but the Trial Court stated i

n its Opinion t

hat it was not going so far as to find that the consent jud gment was res judicata on the issue. Additionally , the Trial Court held in i ts Opini on that t he Dispute

d Area was cov

ered by Sher

man’s deed.

-4- the Disputed Area to

Defendants in 1999, and Arlie’s participation in the Partition Action’s consent ju dgment
, the Trial Court dismissed Plaintiffs’ complaint after finding that these events were evidence t hat Arlie knew that there was no agreement regarding the boundary line. 4 Plaintiffs appeal. We affirm.

Discussion

On appeal and al though not stated exactly as such, Plaintiffs raise the following issues: 1) the Trial Court e rred in refusing to hold

that the Fence was the boundary line by agreement

or acquiescence; 2) the Trial Court erred in finding that Arlie’s execution of the 1999 Warranty Deed andhis participation in the Partition Action’s consent judgment were fatal to Plaintiffs’ claim; and 3) the Trial Court er

red in excluding th

e testimony o

f three of Pla

intiffs’ witne sses for Plaintiff s’ failure to ti mely identify these witnesses. Defenda nts, of course, do not dispute the Trial Court’s dismissal of Plaintif

fs’ complaint and

do not raise furth

er issues on appe

al.

Our review is de novo upon the record, accompanied by a presumption of cor

rectness of the findings of fact of the Trial Court, unless th e preponderance of the evidence is otherwise. Tenn. Rule App. P. 13(d) ; Alexande r v. Inman, 974 S.W.2d 689, 692 (Tenn. 1998). The Trial Court’s conclu sions of

law are subject to de novo review with no pre sumption of corre

ctness. Ganzevoort v. Russell, 949 S.W.2d 293, 296 (Tenn. 1997).

Although Pla int iff s’ c omp lai nt d oes not pro vid e th at t hey p ro ceeded under Tenn. Code Ann. § 16-11-106, that statute sets forth the burden of proof in a boundary line dispute. Tenn. Code Ann. § 16-11-106(b) provides that in a boundary line case, a plaintiff must “prove clearly” that he is the true owner of the land at issue. Carr v. Wilb anks , 324 S.W.2d 786, 792 (Tenn. Ct. App. 1958); Burks v. Boles , 934 S.W.2d 653, 654-55 (Tenn. Ct. App. 1996). In this matter, although the Trial Court did

not expressly state that it followed Tenn. Code Ann. § 16-11-106, it is apparent from its Opinion and Judgment that it found that Plaintiffs did not prove clearly tha t theywere the true owners of the Disputed Area.

From the record on appeal, we hold that the evidence does not

preponderate a

gainst the Trial Court’s factual finding that the Fence is not the agreed upon boundary between Sherman’s property and Arlie’s property

. See Tenn. Rule App. P. 13(d); Alexander v. Inman, 974 S.W.2d at 692. Since the witnesses’ accounts of the location of the boundary line and Arlie’s and Sherman’s

use of the Disputed Area w ere confli cting, the Trial Court, in part, based its decision upon the credibility

of the witnesses. The credibility of Arlie is crucial to Plaintiffs’ proof. The Trial Court specifically

stated in its opinion t

hat it could

not give grea

t weight to Arlie’ s testimony, e specially in light of Arlie’s admitted difficulties with memory related to his previous stroke.-5- It is true that Arlie,

along with

Arvil and the Def

endants, tes tif ied by de pos iti on o nly, andthis Court is in as good a position as the Trial Court to “evaluate the credibility of witnesses who testify by deposition.” Riddick v. Jackson Metal Serv., Inc.
, No. 02S01- 9703-CV-

00016, 199 8 WL 135484, at * 2 (Tenn. Sp. Work . Comp. Panel Mar. 25 , 1998); Henson v. City of Lawrenceb urg , 851 S.W.2d 809, 812 (Tenn. 1993). We hol d, however, tha t even upon a “fresh” review of Arlie’s deposition testimony, we agree with the

Trial Court ’s assess

ment of Ar

lie’s cre dibility. We acknowledge that Arlie’s testi mony, which i

s corroborated b

y Arvil, was that he owned the Disputed Area and that he, Sherman and Arvil recognized the Fence as the boundary. Arlie, however, contradicted

that testimony and further testified that he did not recall giving a de ed to his son, Dennis, for the 25 acre parc el. Moreo ver, Arlie read ily admitted t

hat he had diffic

ulty with his memory sin ce su ffer ing a str oke app rox ima tel y fif tee n ye ars ago, and his test imony frequ

ently demonstrated his trouble with recall of events.

We also agree with the Trial Court’s determination that Arlie’s execution of the 1999 Warranty Deed, his participationi n the 1997 consent judgment and deed, and the testimony that Arlie attempted to obtain a

quit claim deed fo

r the Disputed Are

a further weak

en Plaintiffs’ cla

im. The Trial Court held

that this proof

showed Arlie’s awareness that he did not have an agreement that the Fence was the boundary. This proof, along with Arlie’s credibility problems, supports the Trial Court’s determination that Plaintiffs failed to prove that the Fence w a s the boundary line by agreement.

Moreover, it is apparent that in rendering its decision, the Trial Court relie

d heavily upon the testimony of Defendants’ surveyor , Crutchfield, and thus, found Crutchfield to be more credible than Plain

tiffs’ sur veyor , Reece. “

Unlike thi

s Court, th

e [T]r ial [C]ourt observed the

manner and demeanor of the witnesses and was in the bes t position to evaluate their credibility.” Union Planters Nat’l Bank v. Island Mgmt. Auth., Inc. , 43 S.W.3d 498, 502 (Tenn. Ct. App. 2000). The Trial Court’s determinations regarding credibi lity are accorded deference by this Court. Id. ; Davisv. Liberty

Mutual Ins. Co. , 38 S.W.3d 560, 563 (Tenn. 2001). “‘[A]ppellate courts will not re-evaluate

a trial judge’s assessment of witness credibility absent clear and convincing evidence to the contrary.’” Wells v. Tenne ssee Bd. of Regen

ts , 9 S.W.3d 779, 783 (Tenn. 1999).

Acco rdi ngly, we hold that the evidenced oes not preponderate against the Trial Court’s finding that there was no agreement that the Fence was the boundary between Arlie’ s and Sherman’s property. See Tenn. Rule App. P. 13(d); Alexander v. Inman, 974 S.W.2d at 692.

Wit h respect to Plaintiffs’ remaining issue on appeal regarding the Trial Cour t’ s exclusion of three of their witnesses, we find no reversible error. A p pellants concede that the decision whether or not to allow these witnesses to testify was within the so und discretion of the Trial Court. We

find no abuse of this discretion by the Trial Court. Further, we hold that even if the Trial Court’s exclu

sion of those witnes ses constituted er ror, the exclusion d

id not “more proba

bly than not [affect] the judgment or . . . result in prejudice to the judicial process.” Tenn. R. App. P. 36(b).-6- In their Reply Brief, Plaintiffs also raise issues regarding Defendants’ allegations of facts unsupported by the record in their appellate brief. We agree with Plaintiffsthat in numerous instances,Defendants’ ci

tations to the record in support of their factual allegations are not supported by the record. Factual assertions must be supported by evidence in the record. Te

nn. Ct. App. R. 6(b); Sorrel v. Henson , No. 02A01-960 9-JV-0 0212, 1998 WL 886561, at * 2 n.3 (Tenn. Ct. App. Dec. 18, 1998). Defen

dants’ factual a

ssertions not suppor

te d by evidenc e in the record were not conside red bythis Court in arriving at our decision. We hold, however, that the Trial Court’s deci si on that Defendants are the owners of the Disputed Area is adequately supported by what actually is c

ontained in the re

cord on appeal.

Conclusion

The judgment of the Trial Court is af fir med. This cause is remanded to the Trial Courtfor such further

proceedings a

s may be req

uired, if any, consis

tent with this Opinion, and for collection of the costs below. The costs on appeal are assessed against the Appellants, Audie Lowe, Hil da Lo we an d Sh eil da M ill s, a nd t hei r su ret y.

___________________________________ D. MICHAEL SWINEY, JUDGE