                   IN THE COURT OF APPEALS OF TENNESSEE
                                AT JACKSON
                             October 1999 Session

WILLIAM P. CRAWFORD and CAROLYN B. CRAWFORD v. GREGORY
              A. DODSON and KAREN D. DODSON,

                  Direct Appeal from the Chancery Court for Shelby County
                          No. 98-0405-1 C. Neal Small, Chancellor

     GREGORY A. DODSON and KAREN D. DODSON v. WILLIAM P.
           CRAWFORD and CAROLYN B. CRAWFORD

                  Direct Appeal from the Chancery Court for Shelby County
                           No. 109937-1 C. Neal Small, Chancellor



                  No. W1998-00805-COA-R3-CV - Decided August 28, 2000
                      (Consolidated with No. W1998-00806-COA-R3-CV)

        This is a boundary line dispute. The defendants appeal a jury verdict finding that the
boundary line was situated where the plaintiffs had maintained. The defendants assert that the trial
court erred in denying their motion for judgment notwithstanding the verdict, and also appeal several
other rulings by the trial court. We affirm the trial court, except to remand for modification of the
trial court’s award of discretionary costs to the plaintiff.

Tenn. R. App. P. 3 Judgment of the Chancery Court is Affirmed In Part, Modified in Part, and
Remanded.

HOLLY KIRBY LILLARD , J., delivered the opinion of the court, in which W. FRANK CRAWFORD , P.J.,
W.S., and ALAN E. HIGHERS , J., joined.

James H. Forsythe, Memphis, Tennessee, for the appellees, William P. Crawford and Carolyn
Crawford.

Larry E. Parrish, Memphis, Tennessee, for the appellants, Gregory A. Dodson and Karen D. Dodson.

                                            OPINION

       On August 25, 1988, Walter Norris Foster ( “Foster”), conveyed the real property now known
as Foster Ridge Subdivision to the Foster Ridge Development Corporation (“Foster Ridge”). The
warranty deed contained a metes and bounds description of the property. In 1990, Foster Ridge
developed the Final Plat of Foster Ridge Subdivision, Section C. Thereafter, all conveyances of lots
to purchasers were made by reference to the legal description in the final plat of Section C.

        Upon completion of the streets, curbs and gutters, “crow’s foot” markers were cut into the
curbs to designate the property lines. The crow’s foot is usually cut into the curb by a surveyor and
is the designation of the property line out to the curb.

      After several conveyances, Lot 3 was conveyed on August 4, 1995, to Defendant/Appellants
Gregory A. Dodson and Karen D. Dodson (“the Dodsons”) by warranty deed. The property
conveyed to the Dodsons is described as follows:

               Lot 3, Section C, Foster Ridge Subdivision, as shown on Revised plat
               of record in Plat Book 139, Page 17, in the Register’s Office of
               Shelby County, Tennessee, to which plat reference is hereby made for
               a more particular description thereof.

        On October 25, 1996, Lot 4 was conveyed to Plaintiff/Appellees William P. Crawford and
Carolyn B. Crawford (“the Crawfords”) by warranty deed. The property conveyed to the Crawfords
is described as follows:

               Lot 4, Section C, Foster Ridge Subdivision, as shown on plat of
               record in Plat Book 139, Page 17, in the Register’s Office of Shelby
               County, Tennessee, to which plat reference is hereby made for a more
               particular description thereof.

        The recorded plat defined the location and length of property lines, the specific square
footage of the individual lots and the location and length of the various easements. Lots 3 and 4 are
adjoining lots fronting a cove or cul-de-sac. The lots have a common boundary, which is the subject
of this controversy.

         In September 1989, Memphis Light, Gas & Water (hereinafter, “MLG&W”), pursuant to its
utility easement, installed a pad-mounted transformer between Lots 3 and 4. Typically, the utility
easement is situated on the boundary line with five feet to either side. After MLG&W installed its
transformer, other utility providers placed their utilities within the easement near the MLG&W
transformer.

        In February 1996, the Dodsons began construction on a house on Lot 3. Prior to construction,
surveyor Charles Campbell conducted a survey of Lot 3, dated July 31, 1995, and his survey showed
a crow’s foot marker between Lots 3 and 4. Campbell’s second survey, dated February 13, 1996,
also showed the crow’s foot marker. However, Campbell’s final survey, conducted on October 28,
1996, did not show a crow’s foot marker between Lots 3 and 4, because the Dodsons had installed
a driveway along the line separating Lots 3 and 4, and had removed the section of the curb with the
crow’s foot marker.


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        Subsequently, in 1997, the Crawfords began construction of a house on the adjacent Lot 4.
The Crawfords obtained permission from the City of Germantown to move the transformer 5 feet
closer to the street. During construction, a question arose as to the proper location of the boundary
line between Lots 3 and 4. Surveys commissioned by both parties did not resolve the dispute. In
addition, the Dodsons objected to the placement of the Crawford house as being too close to the
property line, and they argued that the location of the house required the Crawfords’ driveway to be
placed on the Dodsons’ property.

        On August 29, 1997, the Dodsons filed a complaint in the Shelby County Chancery Court
seeking a declaratory judgment as to the location of the property line and to quiet title. The lawsuit
named the Crawfords as defendants, as well as Enterprise National Bank, holder of the deed of trust
to the Crawford property, Union Planters National Bank, holder of the deed of trust to the Dodson
property, and MLG&W. Pending trial, both the Dodsons and the Crawfords were permitted access
to the disputed area, and the Crawfords were permitted to continue construction of their house under
certain conditions.

        On May 4, 1998, the day before trial, the Dodsons filed a voluntary nonsuit of their claims.
The trial court entered an order dismissing the case, and later awarded the Crawfords discretionary
costs in the amount of $4,825.27. The Dodsons timely filed a notice of appeal, appealing the trial
court’s order awarding discretionary costs.

        On May 5, 1998, one day after the Dodsons filed a notice of voluntary nonsuit in the first
lawsuit, the Crawfords filed a lawsuit to quiet title and for damages. The Crawfords’ complaint
named the Dodsons as defendants. Thereafter, the Dodsons filed a counterclaim against the
Crawfords in which they sought substantially the same relief as had been sought in the previous
lawsuit. A three-day jury trial commenced on July 7, 1998. After deliberating, the jury determined
that the boundary line lay where the Crawfords had maintained.

        The Dodsons then filed a motion for judgment notwithstanding the verdict, or in the
alternative, for a new trial. By order entered August 28, 1998, the trial court denied the motion.
Thereafter, the Dodsons timely filed a notice of appeal, appealing the trial court’s order denying the
motion for judgment notwithstanding the verdict.

        The Crawfords filed a motion in regard to the second lawsuit to assess discretionary costs
against the Dodsons, under Rule 54.04 of the Tennessee Rules of Civil Procedure. The trial court
awarded the Crawfords $3,000 in discretionary costs. The Dodsons then filed an amended notice
of appeal, appealing the order awarding discretionary costs.

       Separate records were filed in regard to each appeal, but the appeals were consolidated
pursuant to Rule 16(b) of the Tennessee Rules of Appellate Procedure.




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       On appeal, the Dodsons, submit the following issues:

       I. Whether the trial court erred in denying the motion for judgment notwithstanding
       the verdict;

       II. Whether the trial court erred in denying the motion to dismiss the complaint for
       failure to join indispensable parties;

       III. Whether the trial court erred in denying the defendants’ motion for a new trial
       on the basis of insufficient jury instructions;

       IV. Whether the trial court erred in excluding the testimony of Gregory Dodson
       regarding the verbal and demonstrative representations regarding the boundary line
       which were made by the grantor prior to the purchase by the Dodsons;

       V. Whether the trial court erred in excluding testimony of Walter Norris Foster, the
       common grantor, as to his intentions when granting the property to the parties’
       predecessors in title;

       VI. Whether the trial court erred in denying the defendants’ motion for a new trial
       on the basis of the use of the Golden Rule argument by the plaintiffs; and

       VII. Whether the trial court erred in granting the defendants’ motions for
       discretionary costs in regard to both causes of action.

        We consider first whether the trial court erred in denying the Dodsons’ motion for judgment
notwithstanding the verdict. In considering a motion for judgment notwithstanding the verdict, we
must “take the strongest legitimate view of the evidence in favor of the non-moving party.” Eaton
v. McLain, 891 S.W.2d 587, 590 (Tenn. 1994). The motion is granted only if reasonable minds
could not differ on the conclusion drawn from the evidence. Id. Moreover, we must consider the
standard of review of a jury's findings of fact. The scope of review of findings of fact made by a jury
is well-settled. Rule 13(d) of the Tennessee Rules of Appellate Procedure provides: “[F]indings of
fact by a jury in civil actions shall be set aside only if there is no material evidence to support the
verdict.” Id. In Reynolds v. Ozark Motor Lines, Inc., 887 S.W.2d 822 (Tenn. 1994), the Tennessee
Supreme Court stated:

               The appellate courts do not determine the credibility of witnesses or
               weigh evidence on appeal from a jury verdict. Appellate courts are
               limited to determining whether there is material evidence to support
               the jury’s verdict. Where the record contains material evidence
               supporting the verdict, the judgment based on that verdict will not be
               disturbed on appeal.



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Id. at 823. Therefore, on appeal, we must determine whether there is material evidence to support
the jury’s finding of fact as to the location of the boundary line.

        At trial, the Dodsons relied on the placement of the MLG&W transformer and MLG&W’s
practice of placing transformers directly on the boundary line between properties with a five foot
easement on either side. The Crawfords relied on the recorded plat and surveys by three licensed
surveyors which found the boundary line between Lots 3 and 4 to be consistent with the recorded
plat.

         On appeal, the Dodsons cite a number of cases, such as Thornburg v. Chase, 606 S.W.2d
672 (Tenn. Ct. App. 1980) (in determining boundaries, resort is first made to natural landmarks, then
to artificial monuments, then to boundary lines of adjacent property, then to courses and distances)
and Isaacs v. Bokor, 566 S.W.2d 532 (Tenn. 1978) (rescission of contract for sale of property
warranted by mutual mistake). We find these cases inapplicable, since the issue presented on appeal
is whether there is sufficient and material evidence to support the jury’s finding of fact as to the
location of the boundary line. After review of the record as a whole, we find there is clearly material
evidence to support the jury’s finding of fact. Consequently, the trial court’s denial of the Dodsons’
motion for judgment notwithstanding the verdict is affirmed.

        The Dodsons also argue on appeal that the trial court erred in denying their motion for
dismissal of the Crawfords’ claims for failure to join indispensable parties. In the first lawsuit, the
Dodsons named as defendants not only the Crawfords, but also Enterprise National Bank, Union
Planters National Bank and MLG&W. In the second lawsuit, the Crawfords named only the
Dodsons as defendants. The Dodsons contend that the banks and MLG&W were indispensable
parties and that the Crawfords’ claims should have been dismissed for failure to join them. The
Dodsons rely upon Tennessee Code Annotated § 29-14-107, which provides:

               (a) When declaratory relief is sought, all persons shall be made
               parties who have or claim any interest which would be affected by the
               declaration, and no declaration shall prejudice the rights of persons
               not parties to the proceedings.

Tenn. Code Ann. § 29-14-107(a) (1980).

        In this case, the Crawfords’ complaint sought to quiet title and to declare the boundary line
to be located where indicated in the recorded plat. Both banks had disclaimed any interest in the
prior declaratory judgment action brought by the Dodsons, and there is no evidence in the record to
the contrary. Each has a deed of trust in the respective parcels of property, whatever the dimensions,
and so is unaffected by the outcome of the litigation. There is no evidence in the record indicating
that MLG&W’s utility easement would be affected by the outcome of the litigation. Under these
circumstances, the trial court’s denial of the Dodsons’ motion to dismiss is affirmed.




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        The Dodsons next contend that the trial court erred in denying their motion for a new trial
because the jury instructions failed to set forth the controlling law regarding location of boundary
lines, and also failed to apprise the jury that their verdict must be based on the preponderance of the
evidence. The trial court gave the following jury instruction:

                Is the true and correct property line, separating Plaintiff Crawford’s
                lot #4 from Defendant Dodson’s lot #3, the orange line as shown of
                Exhibit 42A, Plat of Section C, Foster Ridge Subdivision - or - is it
                the green line shown just above the orange line on the same Exhibit
                42A?

Before giving this instruction to the jury, the trial judge discussed it with counsel for both parties:

                THE COURT: Gentlemen, I’ve been trying to come up with the
                simplest way possible to present this to the jury, and of course, both
                of you are asking for the same thing and that is for the jury to decide
                where the property line is, correct?

                MR. FORSYTHE: Yes, Your Honor.

                THE COURT: I’ll need these back because I want to keep a copy, but
                this is the proposed question for the jury that I’ll ask you to look over.

                MR. PARRISH: This is acceptable to the defendants, Your Honor.

                MR. FORSYTHE: Acceptable.

Therefore, counsel for both parties told the trial court that the jury instruction was acceptable and
voiced no objection to it. Under Rule 51.02 of the Tennessee Rules of Civil Procedure, a party may
object to “the content of an instruction given or to failure to give a requested instruction” but that
failing to “make objection” does not prejudice the party from assigning as error the basis of the
objection in a motion for new trial. Id. However, in Rule v. Empire Gas Corp., 563 S.W.2d 551
(Tenn. 1978), the Supreme Court held that Rule 51.02 does not “relieve[] trial counsel of the burden
of requesting an instruction to cover alleged omissions in the instructions as given.” Id. at 553. It
found that the trial court did not err in failing to give a particular jury instruction where the defendant
had not requested that instruction. See id. In this case, the Dodsons not only failed to object to the
jury instructions as given, but did not request the instruction that they now contend was necessary.
See Tenn. R. App. P. 36(a). Under these circumstances, we affirm the trial court’s denial of the
Dodsons’ motion for new trial on this basis.

        The Dodsons contend that the trial court erred in not permitting Mr. Dodson to testify about
his conversations with Andrew Foster, the real estate agent, relating to Andrew Foster’s alleged
verbal and demonstrative representations of the location of the boundary line. The Dodsons also


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argue that the trial court erred in admitting into evidence the affidavit of Walker Norris Foster,
stating that Foster Ridge Development Corporation intended that the boundaries of the lots be as
shown on the recorded plats. The trial court has wide discretion in the admission of testimony and
evidence. See Dockery v. Bd. of Prof’l Responsibility, 937 S.W.2d 863, 866 (Tenn. 1996); Otis v.
Cambridge Mut. Fire Ins. Co., 850 S.W.2d 439, 442 (Tenn. 1992). We find no abuse of discretion
by the trial court on these issues.

        The Dodsons also contend that the trial court erred in not excluding the Crawfords’ attorney’s
repeated references to “you” during his closing argument to the jury. The Dodsons assert that this
is a “Golden Rule” argument, in which a jury is called upon to place themselves in the position of
the plaintiffs, and that it is inflammatory and warrants a new trial. They cite Roberts v. Federal
Express Corp., No. 02A01-9502-CV-00019, 1996 WL 114489 (Tenn. Ct. App. Mar. 14, 1996), in
which this Court held that the Golden Rule argument of plaintiff’s counsel during closing argument
warranted the trial court’s declaration of a mistrial. Id. at *3.

        After review of the closing argument made by counsel for the Crawfords, it appears that any
statements containing “you” were minimal and harmless, with most being directed toward the
general population and not the jurors themselves. See Perkins v. Sadler, 826 S.W.2d 439, 443
(Tenn. Ct. App. 1991). Indeed, counsel for the Dodsons stated that he would not seek a mistrial, but
simply an instruction to counsel for the Crawfords. Under these circumstances, we affirm the trial
court’s decision on this issue.

         Finally, the Dodsons raise the issue of the imposition of discretionary costs taxed to them in
regard to both cases. In the first lawsuit, the Dodsons filed a voluntary nonsuit on May 4, 1998, the
day before the trial was to have begun. On May 5, 1998, the Crawfords filed their lawsuit to quiet
title; the Dodsons later filed a counterclaim in the second lawsuit. Meanwhile, on May 20, 1998,
in the first (now nonsuited) lawsuit, the Crawfords filed a motion for costs, including discretionary
costs, which was supported by the affidavit of their attorney. The Crawfords sought $4,825.27 in
discretionary costs. On May 29, 1998, the trial court entered an order dismissing the case. On
August 28, 1998, the trial court entered an order awarding the Crawfords the full amount of
discretionary costs sought, $4,825.27. On September 4, 1998, the Dodsons filed a motion to
reconsider, which was denied.

        On August 12, 1998, the Crawfords filed a motion to assess discretionary costs against the
Dodsons in regard to the second lawsuit. That motion also was supported by the affidavit of their
attorney. In the second lawsuit, the Crawfords sought $3,427.99 in discretionary costs. On October
30, 1998, the trial court entered an order in the second lawsuit awarding the Crawfords $3,000 in
discretionary costs against the Dodsons. Thereafter, the Dodsons filed an amended notice of appeal,
appealing the order awarding discretionary costs.

        As a general rule, the trial court, in its discretion, may tax costs against the litigants as well
as “the equities of the case demand.” Tenn. Code Ann. § 20-12-119 (1994). The trial court has



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broad discretion in awarding costs, and its discretion is not disturbed on appeal in the absence of
clear abuse. See Branstetter v. Poynter, 222 S.W.2d 214, 217-18 (Tenn. Ct. App. 1949).

        Rule 54.04 of the Tennessee Rules of Civil Procedure governs the taxation of discretionary
costs. It provides:

               (2) Costs not included in the bill of costs prepared by the clerk are
               allowable only in the court's discretion. Discretionary costs allowable
               are: reasonable and necessary court reporter expenses for depositions
               or trials, reasonable and necessary expert witness fees for depositions
               or trials, and guardian ad litem fees; travel expenses are not allowable
               discretionary costs.

         The affidavits filed in support of the motions for discretionary costs appear to include costs
not recoverable under Rule 54.04(2). Rule 54.04(2) specifies that expert witness fees are recoverable
only insofar as they are incurred “for depositions or trials. . . .” Tenn. R. Civ. P. 54.04(2); see also
Miles v. Voss Health Care Center, 896 S.W.2d 773, 776 (Tenn. 1995). The affidavits, referenced
in the trial court’s orders, appear to include expert witness fees for inspection of the property and
preparation for depositions and trial. These are not recoverable under Rule 54.04 (2). Id.; see also
Duncan v. DeMoss, 880 S.W.2d 388, 389-90 (Tenn. Ct. App. 1994). Accordingly, the order
awarding discretionary costs is modified to exclude costs not recoverable under Rule 54.04(2),
including but not limited to expert witness fees not incurred “for depositions or trials. . . .” The
cause is remanded for modification of the award of discretionary costs in accordance with this
Opinion.

      Therefore, the trial court’s award of discretionary costs is modified as set forth in this
Opinion, and this issue is remanded to the trial court for further proceedings consistent with this
Opinion. The remainder of the trial court’s decision is affirmed. Costs are taxed against Appellants
Gregory and Karen Dodson, for which execution may issue if necessary.




                                       HOLLY KIRBY LILLARD, J.




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