                IN THE COURT OF APPEALS OF TENNESSEE
                           AT KNOXVILLE
                                  March 5, 2012 Session

               H. JEWELL TINDELL v. CALLIE A. WEST ET AL.

                   Appeal from the Chancery Court for Knox County
                   No. 178105-3    Michael W. Moyers, Chancellor


                No. E2011-01744-COA-R3-CV-FILED-APRIL 30, 2012


A dispute over the extent of lawn being mowed and the manner in which it was being mowed
escalated into this action filed by H. Jewell Tindell against her neighbors, Callie A. West and
husband, M. Adam West (collectively “the Defendants”). The Plaintiff asked that the
boundary line between the neighboring lots be established and demanded compensatory and
punitive damages. The Defendants filed a third-party complaint against their predecessor in
title, Sandra Stallings, based upon her alleged misrepresentation in her disclosure to them.
After a bench trial, the court awarded the Plaintiff a judgment establishing the boundary
according to one of her two surveys, and awarded her the cost of her surveys as damages.
The court also ordered the Defendants to remove all encroachments. The court found that
Ms. Stallings failed to disclose known encroachments and held her liable to the Defendants
for one-half of the cost of the surveys. The Defendants appeal. We reverse that part of the
judgment awarding as damages the cost of the surveys. In all other respects, we affirm the
trial court’s judgment.

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

C HARLES D. S USANO , J R., J., delivered the opinion of the Court, in which H ERSCHEL P.
F RANKS, P.J., and D. M ICHAEL S WINEY, J., joined.

Callie A. West and M. Adam West, Knoxville, Tennessee, appellants, pro se.

James M. Cornelius, Jr., and James P. Moneyhun, Jr., Knoxville, Tennessee, for the appellee,
H. Jewell Tindell.

No appearance by or on behalf of appellee Sandra Stallings.
                                                 OPINION

                                                       I.

        This is a dispute between the neighboring owners of lots 25 and 26 in the Huntington
Place subdivision in Knoxville. Our Figure 1 is an edited1 reproduction of a trial exhibit that
shows the area in dispute as well as the relative locations of the lots. The Plaintiff’s home
is on lot 26. The Defendants’ lot 25 is improved with their residence. Sandra Stallings, as
previously noted, is the Defendants’ predecessor in title to lot 25. She purchased the lot in
1991.




                                                  Figure 1.

       Like many disputes, this one had its beginning in happier times when the owners of
the adjacent lots were friends. The Plaintiff purchased lot 26 from Mr. and Mrs. Keith Cofer
in October 2001. The Cofers informed the Plaintiff that some of the deeded property was
inside a fence that enclosed Ms. Stallings’ swimming pool. Ms. Stallings built the pool in
1998 or 1999. There was, at the time Ms. Stallings built her pool, an existing fence (“the
Existing Fence”) on the Cofers’ property that runs generally parallel to the property line
separating lots 25 and 26; it is a few feet west of what the trial court determined to be the real
property line. The Existing Fence is illustrated on Figure 1 and labeled with our


        1
          The edits are the addition of the reference to “north” in the lower right hand corner and the addition
of the following words: Tindell, West, Existing Fence and Stallings Fence.

                                                      -2-
nomenclature. Ms. Stallings needed a fence around her pool, but could not afford to fence
her property. The Cofers gave her permission to tie into the Existing Fence. Ms. Stallings
also constructed a short fence (“the Stallings Fence”) that runs from the northwest corner
of her house to the Existing Fence. It is shown on Figure 1 as a broken line. Ms. Stallings
knew that the result of tying the fences together was to enclose some of the Cofers’ property
within the fenced area, but she had no intention of claiming that property. Ms. Stallings
would later testify that she did not know the location of the true boundary line between lots
25 and 26. In 2000, Ms. Stallings built a rock wall along the west end of her pool to keep
mud from washing into the pool. Even though she did not know it, the rock wall encroached
slightly, less than two feet, onto the Cofers. She also installed some landscaping in the
general vicinity of the Existing Fence with the permission of the Cofers. Ms. Stallings also
extended her driveway to the west to accommodate another vehicle. Unbeknownst to Ms.
Stallings, the driveway encroached about 1.5 feet onto the Cofers.

       When the Plaintiff bought lot 26, she was told by the Cofers that the fence was not on
the boundary line. She “walked” the real line with the Cofers. The Plaintiff mentioned the
discrepancy to Ms. Stallings. Ms. Stallings confirmed that the fence was not on the line.
Ms. Stallings stated that she would move the Stallings Fence and landscaping if and when
the Plaintiff wanted her to move it. They reached an informal agreement whereby Ms.
Stallings would maintain the property inside the fence so long as it was fenced. The Plaintiff
did not know at that time that the driveway and the stone wall each also encroached slightly
on her property.

        The Plaintiff’s relationship with Ms. Stallings was very amicable. They helped each
other out, especially when one was away. This extended to a small strip of grass between
their driveways in the front of their respective properties near the street. Whichever neighbor
was mowing at the time simply “mowed all of it.” There was never an issue as long as Ms.
Stallings owned lot 25.

        Ms. Stallings sold lot 25 to the Defendants in December 2008. Even though she knew
that some of the Plaintiff’s property was within her fence, she did not inform the Defendants.
As the seller of lot 25, Ms. Stallings signed a disclosure form that stated she was not aware
of “[a]ny encroachments, easements, or similar items that may affect [her] ownership interest
in the property.” She testified at trial that she did not consider the fenced area to be an
encroachment because of her understanding with the Plaintiff that she would move the fence
if the Plaintiff wanted it moved.

        Problems between the Plaintiff and the Defendants began in the 2009 mowing season.
The Plaintiff testified that she enjoyed mowing and caring for her yard, but began noticing
that all the grass between the driveways had been mowed so short that it took the dirt along

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with the grass in places. From the Plaintiff’s perspective, the grass had been “scalped.”
According to the Plaintiff, she left a note on the Defendants’ door stating that the fence was
not on the property line and that she did not want Ms. West to mow the grass over the
property line. She did not identify the location of the property line. According to the
Plaintiff, Ms. West relented for the remainder of 2009, but started her “scalping” again with
the 2010 mowing season. Ms. West denied receiving the note. The Plaintiff hired a surveyor
to stake the boundary line and sent a letter addressed to “Ms. Callie A. West” demanding that
she stop mowing the Plaintiff’s property and move the fence and all encroachments. Mrs.
West responded by letter, stating, among other things, that the fences had been up for 20
years and that the fences would not be moved. The Plaintiff then obtained a second survey
and retained counsel who sent a demand letter to the Defendants, along with the survey,
before filing this action to quiet title and for damages.

        The Defendants retained counsel and answered the complaint2 . They did not raise a
statute of limitations defense. They also filed a third-party complaint against Ms. Stallings
based on her failure to disclose the encroachments.

         The Defendants discharged their attorney sometime before the trial began. They
proceeded without counsel to trial. On the morning of trial, the Defendants raised, for the
first time, the contention that the claim against them was barred by Tenn. Code Ann. § 28-2-
103 (2000). The pertinent part of the statute, subsection (a), states as follows:

                 No person or anyone claiming under such person shall have any
                 action, either at law or in equity, for the recovery of any lands,
                 . . . but within seven (7) years after the right of action accrued.

The Plaintiff objected to any statute of limitations defense as untimely and asserted that it
was waived because it was not raised in the answer. The court proceeded directly to the
proof without ruling on the objection. The proof included testimony from two surveyors for
the Plaintiff. No expert testimony was offered on behalf of the Defendants. The Plaintiff’s
surveyors stated that the rock wall encroached on the Plaintiff by 1.13 feet and the driveway
by 1.75 feet.

        During closing argument, the Defendants again made reference to Tenn. Code Ann.
§28-2-103. The court interrupted the argument and stated that since the defense had not been
raised in the pleadings “it’s kind of late in the day to be bringing it up now, unfortunately.”




       2
           The original complaint did not include Mr. West. He was named in an amended complaint.

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        The court announced its decision from the bench. The court noted that there was no
expert testimony presented by the Defendants. It adopted one of the surveys introduced by
the Plaintiff to establish the true line separating the lots. Accordingly, the court found that
the Stallings Fence, the rock wall and the Wests’ driveway encroached upon the Plaintiff’s
property and ordered the Defendants to remove the encroachments so that the Plaintiff could
move the Existing Fence to the boundary line if she so chooses. The court found that Ms.
Stallings had a duty to disclose the encroachments and that she did in fact know about the
encroachment of the fence but not the other encroachments. The court found that the
Plaintiff would not have needed a survey if this dispute had not arisen and that the Plaintiff’s
damages were the $3,130 she paid to the surveyors for work done in preparing surveys. The
court awarded the Defendants a judgment against Ms. Stallings in the amount of $1,565
based on a finding that Ms. Stallings had incomplete knowledge of the encroachments and
was only partially responsible for the total damages. The court incorporated its findings into
a judgment which was entered in due course. The Defendants filed a timely notice of appeal.

                                              II.

        The Defendants articulate four issues which we have paraphrased and condensed into
the following three:

              Whether the court erred in not considering Tenn. Code Ann. §
              28-2-103 and in not finding the action barred.

              Whether the court erred in ordering the encroachments removed
              rather than awarding damages based on the value of the property
              encroached upon.

              Whether the court erred in awarding the Plaintiff the cost of her
              surveys as damages.

                                              III.

       The Defendants argue that the trial court should have allowed them to amend their
answer to assert Tenn. Code Ann. § 28-2-103 as an affirmative defense and that, if the court
had done so, they would have prevailed as a matter of law. We must disagree for several
reasons. The Defendants acknowledge, as they must, that they did not raise the defense in
their answer and that the failure to raise an affirmative defense in an answer or motion
generally results in a finding of waiver. See Tenn. R. Civ. P. 8.03 and 12.08; Sands v. State,
903 S.W.2d 297, 299 (Tenn. 1995). The reason behind the rule is to prevent one party from
springing a surprise defense at trial on the other party. Id. The Defendants argue that,

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despite their failure to raise the defense in their answer, the trial court had the discretion to
allow them to raise it as late as trial. See Steed Realty v. Oveisi, 823 S.W.2d 195, 197 (Tenn.
Ct. App. 1991). The Defendants are correct that a trial court’s decision whether to allow a
late motion to amend is a discretionary one. Id. This Court, therefore, will not reverse the
trial court’s decision unless there has been an abuse of discretion. Id.

       The Plaintiff notes several problems with the Defendants’ position. First, she points
out that they did not file a motion to amend or even make an oral motion to amend. The
Defendants simply started talking about the statute in their opening statement and continued
to argue it in their closing.

       Second, even if we assume that these pro se litigants made such a motion, the trial
court did not make a ruling until after the proof was in. The Defendants did not have any
proof excluded because of their failure to plead the defense. The trial court handled the
matter in such a way that the court could have allowed an amendment after the fact, had one
been asked for, to conform to the proof pursuant to Tenn. R. Civ. P. 15.02.

         Finally, contrary to the Defendants’ position, the proof allows only one conclusion,
i.e., that the Plaintiff’s action did not accrue until sometime after the Defendants purchased
lot 25 in December 2008. The cause of action does not accrue until the possession becomes
adverse. Brown v. Seal, 179 S.W.3d 481, 484 (Tenn. Ct. App. 2005). “[A]n action under
the statute will not be barred if the possession of the land was permitted by the owner.”
Griffin v. Lester, No. W2004-02072-COA-R3-CV, 2005 WL 3199279 at *4 (Tenn. Ct. App.
W.S., filed Nov. 30, 2005) (citing Menefee v. Davidson County, 260 S.W.2d 283, 285 (Tenn.
1953)). According to all the testimony, Ms. Stallings’ use of anything inside the fenced area
was permissive. From the outset, she told the Plaintiff that she would move the fence and
landscaping if and when the Plaintiff wanted it moved. As to any possession outside the
fenced area, that too appears to have occurred with the Plaintiff’s permission. The
Defendants are correct that “the actual intent to adversely possess the property of another
need not be shown.” Lemm v. Adams, 955 S.W.2d 70, 72 (Tenn. Ct. App. 1997). However,
there are several elements of the defense; it was the Defendants’ burden to establish all the
elements of the adverse possession defense by clear and convincing evidence. Cumulus
Broadcasting v. Shim, 226 S.W.3d 366, 377 (Tenn. 2007). The evidence in this case
preponderates in favor of a finding that, until such time as Ms. Stallings sold lot 25, she was
ready and willing, at all times, to relinquish whatever the Plaintiff claimed as her property.
Ms. Stallings did not find the true line and assert a claim to it – she depended on the Plaintiff
to find the line and she expressed a willingness to comply. This includes even the small
sliver of driveway that encroached on the Plaintiff’s property.




                                               -6-
       Courts are not required to grant motions to amend “[i]f the amendment would have
been futile.” McCollough v. Johnson City Emergency Physicians, 106 S.W.3d 36, 47
(Tenn. Ct. App. 2002). Accordingly, for these several reasons, we hold that the trial court
did not abuse its discretion in its handling of the would-be statute of limitations defense.

       The next issue for our consideration is whether the trial court erred in ordering
removal of the encroachments rather than simply awarding damages for the value of the
property that was encroached upon. The Defendants argue that “since the maximum
encroachment is less than 1.5 feet, [they] should be compelled to pay damages based upon
the value of that portion of the property that is the subject of the intrusion rather than being
compelled to remove” the encroachments. The Plaintiff points out that the Defendants did
not raise this issue with the trial court; they are correct that the first time it was raised was
on appeal. It is clear that “issues not raised in the trial court cannot be raised for the first
time on appeal.” Simpson v. Frontier Community Credit Union, 810 S.W.2d 147, 153
(Tenn. 1991). A finding of waiver is especially appropriate in this case because the
Defendants failed to present any evidence of the value of property that they say was the
correct measure of damages.

       Furthermore, even if we were to reach the issue on the merits, we are not convinced
by the Defendants’ argument. Following is a short excerpt from their argument:

              Morrison v. Jones, 58 Tenn. App. 333, 430 S.W.2d 668 (1968)
              is probably the fountainhead case. In Morrison, the plaintiffs
              filed an action against defendants, alleging that defendants
              constructed a building, which encroached on their property. The
              Chancellor granted a mandatory injunction requiring the
              removal of the portion of the building encroaching on their
              property.

              On appeal, this Court found that the Chancellor properly found
              that there was an encroachment, but . . . held that it was
              improper to issue a mandatory injunction ordering defendants to
              remove the portion of the building encroaching on the property.
              Ordering such removal would impose an undue hardship on
              defendants and result in little, if any, benefit to plaintiffs.
              Further, despite the principle that the equitable remedy of
              injunction was required to be applied for with reasonable
              promptness, the plaintiffs did not file an action and seek a
              prohibitory injunction when they discovered that an
              encroachment was being made upon their land or soon

                                               -7-
              thereafter. Accordingly, the Court said that the appropriate
              remedy was an award of damages for the value of the land, and
              remitted the case to the Chancellor to make that determination.

The Defendants cite other cases for the same propositions. We will assume, for the purpose
of this opinion, that the Defendants have accurately characterized the facts and holdings of
those cases. The present case, however, is much different from the cases upon which the
Defendants rely. In those cases, the true owners of the encroached property more or less
lulled the encroachers into making substantial improvements. In the present case, the
encroacher – Ms. Stallings – asked permission and promised to remove the encroachments
if and when that became necessary. Also, the Plaintiff acted promptly once the conflict with
the Defendants arose. Furthermore, the burden of moving a few feet of fencing and
removing a sliver of concrete approximately 1.75 feet wide is much different from that of
removing a building, as in Morrison. Accordingly, as an alternative holding, we state that
the trial court did nor err in ordering removal of the encroachments rather than awarding
damages based on the value of the property affected by the encroachments.

        The final issue for our consideration is whether the trial court erred in awarding the
Plaintiff damages in the form of the cost of her surveys. The Plaintiff argues that this issue
also was waived because the Defendants failed to object to her proof of the cost of the
surveys and failed to object to the award of damages. We do not agree that the issue was
waived. It is unclear as to when in the proceedings that the Plaintiff believes the Defendants
should have “objected” to the trial court’s award. A party is not obligated to file a post-
judgment motion in a case tried without a jury in order to preserve a challenge to the
judgment. See Tenn. R. App. P. 3(e)(requiring a motion for new trial to preserve certain
issues pertaining to trial “in all cases tried by a jury”). The only other time of which we are
aware that the Defendants could have challenged the award was after the court announced
its decision from the bench. We are not willing to hold that a litigant will have waived an
issue by not arguing with the court after it announces its decision. The only other avenue for
finding waiver by the Defendants is in their failure to object to the evidence. We are not
willing in this case to hold that the failure to object to the evidence is a concession regarding
the merits of that issue.

        Accordingly, we will consider the merits of the issue of whether the trial court erred
in awarding the cost of the surveys as damages. The measure of damages available in a given
case is a question of law for the court to determine. See Dickinson v. Bain, 921 S.W.2d 189,
193 (Tenn. 1996); Uhlhorn v. Keltner, 723 S.W.2d 131, 135 (Tenn. Ct. App. 1986). Our
review of questions of law is de novo. Ridings v. Ralph M. Parsons Co., 914 S.W.2d 79,
80 (Tenn. 1996).



                                               -8-
       The Defendants argue that most states do not award survey costs to a party who
prevails in a boundary line dispute. They point out the Plaintiff’s inability to cite a single
Tennessee case allowing the cost of a survey as an element of damages in a boundary line
dispute.

       The Plaintiff offers three avenues for affirming the award. First, she says that “the
survey fees may have been recoverable as part of her discretionary costs . . . because the
surveyors testified at trial and entered their surveys into evidence.” However, the Plaintiff
concedes that she “did not seek to recover those survey fees as part of her discretionary costs
after entry of the judgment.” Therefore, even if she is correct that the survey fees were
allowable discretionary costs – an issue we do not have to reach – they would become not
subject to recovery because the Plaintiff did not “file and serve a motion [seeking those
costs] within thirty (30) days after entry of judgment.” Tenn. R. Civ. P. 54.04.

       Second, the Plaintiff argues that the survey fees were properly allowed as “nominal”
damages. According to Black’s Law Dictionary, Seventh Edition, nominal damages are
damages that are not real; they are damages “in name only” or “trifling.” See also Womack
v. Ward, 186 S.W.2d 619, 620 (Tenn. Ct. App. 1944)(nominal damages allowed when there
is a wrong but no proof of actual damages). We are not inclined to treat an award of over
$3,000 in a case involving a one or two foot encroachment of a city lot as “trifling.”
Therefore we find no merit in the argument that the award should be upheld as nominal
damages.

     Third, the Plaintiff argues that the cost of the surveys are allowable as consequential
damages for the trespass to her land. Her only authority is the following quote from
Meighan v. U.S. Sprint Communications, 924 S.W.2d 632 (Tenn. 1996):

              the rules for determining damages [in trespass actions] are based
              upon the purposes for which such actions are maintainable
              [including t]o give compensation . . . [and t]o punish
              wrongdoers and deter wrongful conduct. . . .

Id. at 641(quoting 75 Am. Jur. 2d Trespass § 118, at 89 (1991) (brackets and omissions in
Meighan). Much of the language in Meighan was directed at the justification for allowing
punitive damages in trespass actions. The trial court did not award punitive damages in the
present case. The plaintiff acknowledged in closing that “in all honesty, that’s [i.e., damages]
not what we’re today about.” We are not convinced that the Supreme Court’s rationale for
allowing damages in a trespass action is support for an award of damages to a landowner for
surveys that enabled her to learn, for the first time, where her boundary lines are. By all



                                              -9-
accounts, the Plaintiff did not know the exact location of the line or the exact extent of the
encroachments until after she obtained the surveys.

       We have examined the Defendant’s cases which they state

               have rejected such an award as being without authority. See
               Barrett v. Melton, 112 Ariz. 605, 545 P.2d 421, 424 (1976);
               Kroulik v. Knuppel, 634 P.2d 1027, 1031 (Col. App. 1981);
               Howard v. Wills, 77 Ohio App.3d 133, 139, 601 N.E.2d 515,
               519 (1991); Stratford v. Wood, 11 Utah 2d 251, 358 P.2d 80, 81
               (1961)(“such expenditures are not in the nature of costs nor
               damages. The surveys were made in preparation of plaintiffs’
               case.”); Kincaid v. Morgan, 188 W.Va. 452, 460 , 425 S.E.2d
               128, 136 (1992); Geary Land Co. v. Conley, 175 W. Va. 809,
               814, 338 S.E.2d 410, 415 (1985); Mader v. Stephenson, 481
               P.2d 664, 665 (Wyo. 1971).

The Plaintiff correctly points out that most of the Defendants’ cases involve the question of
whether surveys are allowable as costs. However, the Stratford case, referred to in the above
quote, did involve the question of whether the court properly instructed the jury that it could
include a portion of the cost of the survey as damages. 358 P.2d at 81. The Utah court stated
that “such expenditures are not in the nature of costs []or damages.” Id. The general rule
appears to be that the cost of a survey is recoverable, if at all, as a cost allowable only in the
discretion of the trial court where permitted by statute or specific court rule. Annotation, 97
A.L.R.2d 138, 169 (1964). We hold that the cost of the Plaintiff’s surveys are not
recoverable as damages in a boundary line dispute. The trial court erred in awarding
damages based upon the cost of the surveys.

                                               IV.

       The judgment of the trial court is reversed in part and affirmed in part. That part of
the judgment awarding the Plaintiff damages against the Defendants in the amount of $3,130
and the award against Ms. Stallings are reversed. In all other respects the judgment is
affirmed. Costs on appeal are taxed one-half to the appellants, Callie A. West and M. Adam
West, and one-half to the appellee, H. Jewell Tindell. This matter is remanded to the trial
court for collection of costs and enforcement of the judgment as modified by this opinion.


                                                     _______________________________
                                                     CHARLES D. SUSANO, JR., JUDGE

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