                                                                                             05/22/2018
                IN THE COURT OF APPEALS OF TENNESSEE
                           AT KNOXVILLE
                                 March 13, 2018 Session

              JOHN KINDER ET AL. v. WENDELL BRYANT ET AL.

                 Appeal from the Chancery Court for Bradley County
                    No. 2016-CV-228 Jerri Bryant, Chancellor
                      ___________________________________

                            No. E2017-01688-COA-R3-CV
                        ___________________________________

The plaintiffs commenced this declaratory judgment action to establish that their claim to
a forty-acre tract of real property is superior to that of the defendants. The plaintiffs claim
to have purchased the disputed property in 1980; however, their deed was not recorded
until 1995. The defendants’ predecessors in interest purchased the property at a tax sale
in 1994, and their deed was duly recorded prior to the plaintiffs’ deed. The plaintiffs’
claims are based, inter alia, on adverse possession and the contention that the 1994 tax
deed is void or voidable due to lack of notice of the sale. After hearing cross-motions for
summary judgment, the trial court summarily dismissed the complaint finding that the
plaintiffs were not entitled to notice of the tax sale because, at the time of the sale, the
plaintiffs’ deed had not been recorded and the plaintiffs lacked standing to challenge the
lack of notice to their predecessors in title who were the owners of record at the time of
the tax sale. The trial court further found that the plaintiffs had not paid any taxes on the
property and that the defendants paid the property taxes for more than twenty years,
which raised the rebuttable presumption of ownership under Tenn. Code. Ann. § 28-2-
109. Based on these findings, the trial court held that Tenn. Code Ann. § 28-2-110 barred
any affirmative action by the plaintiffs to claim an interest in the property and summarily
dismissed the complaint. We affirm.

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

FRANK G. CLEMENT JR., P.J., M.S., delivered the opinion of the Court, in which D.
MICHAEL SWINEY, C.J. and THOMAS R. FRIERSON II, J., joined.

George N. McCoin, Thomas F. Bloom, and Sheridan C. Randolph, Cleveland, Tennessee,
for the appellants, Mitchell Kinder and John H. Kinder.

Neil A. Brunetz, Chattanooga, Tennessee, for the appellee, Wendell P. Bryant, Jr.
                                        OPINION

       John Kinder (“Plaintiff”) purchased a forty-acre tract of land located in Bradley
County (“the Disputed Property”) from E. L. Richmond in December 1980. The Disputed
Property adjoined another tract of land already owned by Plaintiff where his house was
located. Soon after the purchase, Plaintiff fenced in the Disputed Property. He restricted
access to the property with gates and used the property for cropland, pasture, grazing of
livestock, and storage of equipment, and at times, rented out the property. In the mid-
1980s, Plaintiff built a barn on the Disputed Property.

       For reasons unexplained by the record, the 1980 deed from E. L. Richmond was
never recorded and apparently lost. Upon discovery of this omission, Mr. Richmond
signed a Replacement of Lost Deed in December 1992; however, the replacement deed
was not recorded until three years later, in September 1995.

       In the interim, on April 13, 1994, Doris and Wendell Bryant, Sr. (“the Bryants”),
the parents of Wendell Bryant, Jr. (“Defendant”), acquired the Disputed Property by tax
deed, and the 1994 tax deed was promptly and duly recorded. Twenty-two years later, on
February 3, 2006, the Bryants conveyed the Disputed Property by quitclaim deed to
Defendant as Trustee of the Wendell P. Bryant Sr. Trust. The quitclaim deed was
promptly and duly recorded.

       Prior to 2016, neither Defendant nor his father, Wendell Bryant Sr., made use of
the Disputed Property. In March 2016, however, Defendant demanded that Plaintiff
vacate the property. Since that time, Plaintiff contends that Defendant has trespassed on
the Disputed Property and destroyed locks and gates, which gave rise to this litigation.

        On November 3, 2016, Plaintiff and his son Mitchell Kinder (collectively
“Plaintiffs”) filed a complaint for trespass, unlawful entry, declaratory judgment, and
injunctive relief against Defendant, individually, and as Trustee of the Wendell Bryant
Sr. Trust (collectively “Defendants”). Plaintiffs claimed that Plaintiff John Kinder
purchased the Disputed Property in 1980 and has had continuous, open, exclusive
possession of it since that time. Plaintiffs sought a declaratory judgment that the 1994 tax
deed to the Bryants was void or voidable and that Plaintiff John Kinder lawfully acquired
the land in 1980 or, alternatively, that Plaintiffs are the rightful owners of the land
through adverse possession. Plaintiffs contend the tax deed obtained by the Bryants is
void or voidable because neither Plaintiffs nor the previous property owner, Mr.
Richmond, were notified of the delinquent property taxes owed nor were they informed
that the Disputed Property would be sold at a tax sale.

       Defendants filed a timely answer in which they contended that Plaintiffs’ claims
are statutorily barred by Tenn. Code Ann. § 28-2-110 based on the undisputed fact that
Defendants paid the property taxes for more than twenty years and Plaintiffs never paid

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any property taxes assessed on the Disputed Property.1 Defendants also contended they
are the prima facie owners of the Disputed Property based on their superior chain of title.

       Following discovery, the parties filed cross-motions for summary judgment. After
hearing from both sides, the trial court found that Plaintiffs were not entitled to notice of
the tax sale because, at the time of the sale, Plaintiffs’ deed had not been recorded.
Moreover, the court held that Plaintiffs lacked standing to challenge the lack of notice to
their predecessor in title, E. L. Richmond, who remained the record title holder of the
property at the time of the tax sale. The trial court also found that Plaintiffs had not paid
taxes on the Disputed Property, while Defendants paid taxes on the property for more
than twenty years, which raised the rebuttable presumption of ownership under Tenn.
Code. Ann. § 28-2-109.2 Based on these findings, the trial court held that Tenn. Code
Ann. § 28-2-110 barred any affirmative action by Plaintiffs to claim an interest in the
property and summarily dismissed the complaint. This appeal followed.

                                       STANDARD OF REVIEW

       This appeal arises from the grant of summary judgment. Summary judgment is
appropriate when a party establishes that there is no genuine issue as to any material fact
and that a judgment may be rendered as a matter of law. Tenn. R. Civ. P. 56.04; Stovall v.
Clarke, 113 S.W.3d 715, 721 (Tenn. 2003). “Our review of a trial court’s award of
summary judgment is de novo with no presumption of correctness, the trial court’s
decisions being purely a question of law.” BellSouth Advert. & Pub. Co. v. Johnson, 100
S.W.3d 202, 205 (Tenn. 2003) (quoting Scott v. Ashland Healthcare Ctr., Inc., 49 S.W.3d
281, 285 (Tenn. 2001) (citing Mooney v. Sneed, 30 S.W.3d 304, 306 (Tenn. 2000)).




        1
         Plaintiffs did pay taxes assessed on the barn they built on the Disputed Property; however, the
barn was not assessed to the Disputed Property. Instead, it was assessed to Plaintiffs’ adjoining property.
        2
            Tenn. Code Ann. § 28-2-109 provides:

        Any person holding any real estate or land of any kind, or any legal or equitable interest
        therein, who has paid, or who and those through whom such person claims have paid, the
        state and county taxes on the same for more than twenty (20) years continuously prior to
        the date when any question arises in any of the courts of this state concerning the same,
        and who has had or who and those through whom such person claims have had, such
        person’s deed, conveyance, grant or other assurance or title recorded in the register’s
        office of the county in which the land lies, for such period of more than twenty (20)
        years, shall be presumed prima facie to be the legal owner of such land.



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                                        ANALYSIS

      Although the parties present several issues for us to consider, the dispositive issue
is whether the trial court erred by summarily dismissing Plaintiffs’ complaint as barred
by Tenn. Code. Ann. § 28-2-110.

       The trial court issued its ruling in a detailed and well-reasoned decision, which we
summarize below. The court found that the 1980 deed to John Kinder from E. L.
Richmond was not recorded. A “replacement” warranty deed was executed on December
1, 1992, but not recorded until September 5, 1995. Meanwhile, Defendants or their
predecessors in title received their deeds pursuant to a tax sale, with said deeds being
recorded on April 13, 1994. The property in question adjoins and lies on the north side of
9.84 acres owned by Plaintiff John Kinder. The trial court found that it was undisputed
that Defendants had continuously paid taxes on the forty-acre parcel since 1995, more
than twenty years. The trial court further found that on December 12, 1992, Plaintiff John
Kinder received a document entitled “Replacement of Lost Deed” which recited in part:

       I covenant that on 22 December 1980, the date of the original deed, I was
       lawfully seized and possessed of said real estate; that on said date, I had
       good and lawful right to sell and convey the same; that the title thereto is
       clear, free and unencumbered by any act of mine; and I will forever warrant
       and defend the title thereto against all lawful claims by and through me.

The trial court made a specific finding that “the document does not indicate that it
replaces a deed that was signed and delivered to John Kinder. This ‘new’ deed was not
recorded until September 5, 1995.”

       Considering the foregoing undisputed facts, the trial court determined that Tenn.
Code Ann. § 28-2-110 barred Plaintiffs’ claim. Tenn. Code Ann. § 28-2-110 provides in
pertinent part:

       (a) Any person having any claim to real estate or land of any kind, or to any
           legal or equitable interest therein, the same having been subject to
           assessment for state and county taxes, who and those through whom
           such person claims have failed to have the same assessed and to pay any
           state and county taxes thereon for a period of more than twenty (20)
           years, shall be forever barred from bringing any action in law or in
           equity to recover the same, or to recover any rents or profits therefrom
           in any of the courts of this state.

       Relying on Bone v. Loggins, 652 S.W.2d 758, 761 (Tenn. Ct. App. 1982), the trial
court noted that Tenn. Code Ann. § 28-2-110 was enacted in order to facilitate the
collection of property taxes based on property valuations and that the burden of proof

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requires that any party who relies upon the statute “to clearly establish the failure to pay
taxes by the other party.” The trial court also noted, relying on Cumulus Broadcasting,
Inc. v. J.W. Shim, 226 S.W.3d 366, 381 (Tenn. 2007), that Tenn. Code Ann. § 28-2-110
“should not serve as a bar to a claim of adverse possession when the tracts are
contiguous, a relatively small area, and the adjacent owners making claims of ownership
have paid their respective real estate taxes.”

        The trial court correctly found that the Disputed Property is a forty-acre parcel,
which “is not a relatively small area.” Moreover, the trial court acknowledged that while
Plaintiffs have

       paid taxes on a barn that is located on the 40-acre tract, the proof in this
       case is clear that the Defendants have paid the property taxes on the 40-acre
       tract. Since Defendants have paid taxes on the property continuously for
       over twenty (20) years, a rebutt[able] presumption of ownership arises
       under T.C.A. § 28-2-109. The Defendants also have record title, having had
       their deed recorded since April 13, 1994. Plaintiffs argue that the tax sale
       was constitutionally defective. They have provided no proof that Mr.
       Richmond was not served with process prior to the land being sold for
       delinquent taxes. Instead Plaintiffs’ proof shows summons and publication.
       Defendants respond that T.C.A. § 67-5-2504(d) provides certain limitation
       periods with regards to tax sales:

              1. A suit to invalidate any tax title to land shall be
              commenced within one (1) year of the date the cause of action
              occurred, which is the date of the entry of the order
              confirming the tax sale.

              2. The statute of limitations to invalidate the sale of any tax
              title shall be one (1) year as set forth in the subdivision (d)(1),
              except that it may be extended to one year after the plaintiff
              discovered or with the exercise of reasonable diligence should
              have discovered the existence of such cause of action.

              3. In no event shall any action to invalidate any tax sale be
              brought more than three (3) years of the entry of the order
              confirming the tax sale.

       In this case, Plaintiffs did not bring any cause of action to invalidate any tax
       sale within the three (3) year statute of limitations. No such suit to
       invalidate a tax sale has been filed.



                                             -5-
       Following additional analysis of the statute regarding who was entitled to receive
notice of a tax sale, the trial court reasoned:

      The Plaintiffs did not hold an ownership interest in the property at the time
      of the sale, such that Bradley County was statutorily required to provide
      notice to Plaintiffs. Plaintiffs did not record their deed until after the tax
      deed was delivered; therefore, Bradley County could not have provided the
      Plaintiffs notice of the tax sale. Since Plaintiffs failed to comply with
      T.C.A. § 67-5-2502(b), they were not entitled to notice. Plaintiffs’
      unrecorded deed allegedly obtained in 1980 and again in 1992, was
      effectively non-existent for the purpose of providing notice.

       Relying on Kowalski v. Tesmer, 543 U.S. 125, 129 (2004), the trial court
determined that a party such as Plaintiffs “must assert his or her own legal rights and
interests and cannot rest his claim for relief on the legal rights or interests of third
parties;” therefore, Plaintiffs did not have standing to assert any rights Mr. Richmond
may have had at the time of the tax sale.

       Moreover, the trial court specifically found that there was “no proof in the record
that the tax sale was invalid,” and significantly, “there is no statement from Mr.
Richmond that he was not served with process.” Based on the rule docket of the Bradley
County Clerk and Master’s Office, the court also found “that there was an order of
publication for the delinquent taxes.” In summation, the trial court stated:

      The 1988 tax suit was filed on April 1, 1991, and an Order allowing
      publication was filed on October 20, 1992, which was prior to Plaintiffs
      receiving their “replacement deed”. There certainly appears to be no basis
      to challenge the validity of the tax sale, as Plaintiffs have come forth with
      no proof which would allow them to do so. The court therefore holds that
      T.C.A. § 28-2-110 bars any affirmative action by Plaintiffs claiming an
      interest in the real property.

      Therefore, Defendants’ Motion for Summary Judgment is granted, in that
      Plaintiffs cannot bring an action to recover an interest in this property. . . .
      Based upon the statutes referenced herein this Court holds that Defendants
      are entitled to judgment as a matter of law and Plaintiffs’ claim shall be
      dismissed. Adverse possession cannot be a defensive claim to the statute.
      Plaintiffs’ Motion for Summary Judgment is denied and hereby dismissed.




                                           -6-
       Having determined that the trial court’s findings, legal analysis, and conclusion
are “spot on,”3 and concluding that further analysis is unnecessary, we affirm the trial
court in all respects.

                                      IN CONCLUSION

       The judgment of the trial court is affirmed, and this matter is remanded with costs
of appeal assessed against the appellants, Mitchell Kinder and John H. Kinder.


                                                     ________________________________
                                                     FRANK G. CLEMENT JR., P.J., M.S.




       3
       “In our view, the trial court’s analysis was spot on.” Rudd v. Gonzalez, No. M2012-02714-
COA-R3-CV, 2014 WL 872816, at *8 (Tenn. Ct. App. Feb. 28, 2014).



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