                  IN THE COURT OF APPEALS OF TENNESSEE
                             AT KNOXVILLE
                                       June 22, 2011 Session

                      GLENN CUPP ET AL. v. BILL HEATH ET AL.

                  Appeal from the Chancery Court for Claiborne County
                       No. 16652     Billy Joe White, Chancellor


                 No. E2010-02364-COA-R3-CV-FILED-AUGUST 11, 2011


In late 2007, the defendant Bill Heath1 built a fence on a line running generally east and west,
said line having been established by surveyor Bill Parsons in 1990 and then re-staked in 2007
by surveyor Dennis Fultz. The plaintiff Glenn Cupp, an adjoining landowner to the south of
Heath, hired surveyor Mark Comparoni to establish his northern line because Cupp believed
Heath had built the fence much too far to the south. Marjorie Keck, who joins Heath on her
northern boundary and Cupp on her western boundary, also commissioned Comparoni to
survey her land. Comparoni’s survey confirmed that Heath’s new fence incorrectly
encompassed approximately 35 acres of Cupp’s land and approximately 6 acres of Keck’s
land. Cupp and Keck filed this action against Heath in 2008 to establish their northern
boundary with Heath and the Cupp/Keck common boundary as surveyed by Comparoni. The
trial court found that the Comparoni survey correctly established the boundary lines of all the
parties. Heath appeals. We affirm.

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

C HARLES D. S USANO, J R., delivered the opinion of the Court, in which D. M ICHAEL S WINEY
and J OHN W. M CC LARTY, JJ., joined.

Thomas J. Tabor, Jr., Tazewell, Tennessee, for the appellants, Bill Heath and Virginia Heath.




        1
          We recognize that most of the parties and predecessors are or were married and that their spouses
are or were at least indirectly involved in some of the matters we will be discussing. However, for the sake
of clarity, where the context permits, we will refer to the last name only or the first and last name of the
person most directly involved. We will occasionally refer to Glenn Cupp and wife, Bonnie Cupp, and
Marjorie Keck, collectively as “the Plaintiffs.”
Dennis M. Robertson, Harrogate, Tennessee, for the appellees, Glenn Cupp and wife, Bonnie
Cupp, and Marjorie Keck.

                                         OPINION

                                              I.

         The general vicinity of the property in dispute in this case is east of Highway 33 in
Claiborne County near Midway School. It lays between Goins road on the south and Lily
Grove Road on the north. Bill Heath and wife Virginia Heath bought their property from
family members in 1975. They purchased land on the north and south side of Lily Grove
Road. We are concerned here only with the land on the south side of Lily Grove Road. It
was “all of the lands owned by Tompie Keck at the time of his death on the South side of the
Lily Grove Road and extending in a Southwardly and Southwestwardly direction to the top
of the ridge.” The calls that establish the southern boundary are

              in a Southwardly direction with the Ted Keck property line to
              the common corner of Ted Keck, Tompie Keck, Russell Keck
              and perhaps others; thence in a Southwestwardly direction with
              the Russell Keck property line and thence continuing in a
              Westwardly direction with said Russell Keck property line to the
              intersection of the Tompie Keck and Russell Keck property line
              in the Collins property line; thence in a Northwardly direction
              with the property line of Collins . . .

There were no prior or contemporaneous surveys of the Heath property. As can be seen
from the description, there is no reference to natural or artificial monuments – only the line
of Russell Keck and certain points in that line.

        Heath commissioned William Parsons to survey his land. Bill Heath later testified that
the survey was done for the purpose of conveying the land to his son. The conveyance, if it
exists, was never recorded. Parsons completed his survey in 1990. Heath recorded the plat
Parsons prepared. It references a stone at the southwest corner of Heath and Russell Keck
and a stone at the southeast corner of Heath, Russell Keck, Margie (Marjorie) Keck, and
others. Heath did not fence the area surveyed. The line was marked with plastic survey flags
and some paint. Parsons did not testify at trial.

       County tax records show that Heath paid taxes on 107 acres in 1990. In 1991, after
the Parsons survey was recorded, Heath began paying taxes on 156 acres. In 1990, Russell
Keck paid taxes on 118.5 acres. He and his widow Christine Keck continued to pay taxes

                                             -2-
on 118.5 acres until 2007, when the acreage fell to 81 acres. Marjorie Keck paid taxes at
all relevant times on 42.5 acres.


        In 1946 Russell Keck and wife Christine Keck purchased a tract of land from
relatives, the northern boundary line of which is established by the following calls beginning
at a

              sassafras; thence eastwardly to a post oak on top of hill in
              Goin’s line; thence across the field north 61 east 44 poles to a
              chestnut; thence south 36 east to a fixed stone at Tom Kecks and
              A.C. Goin’s corner . . .

As with the Heath deed there was no contemporaneous survey.

       In about 1947 Marjorie Keck took title along with her husband to a parcel of land that
joined Russell and Christine Keck on the east. Her deed is not in the record.

       Christine Keck sold all her property on the north side of Goins road to George L.
Cupp and Bonnie L. Cupp in December of 2008. In the meantime, Heath hired surveyor
Dennis Fultz, not to survey, but to stake the southern portion of the lines surveyed by Parsons
in 1990. The stated purpose was so that Heath could fence the property. Fultz did not speak
with Parsons. Heath showed Fultz the location of where he thought the line was although
Fultz found some of Heath’s indications to be incorrect. Fultz completed his work in
November 2007. Heath began the fencing and the Plaintiffs in this case protested.
Eventually Heath completed the fencing.

       Cupp and Marjorie Keck hired Comparoni to survey their land as well as identify the
area in conflict. We believe a portion of Comparoni’s survey is the best vehicle for
demonstrating the location of the respective parcels and the area in dispute. We have
displayed that portion, with minor editorial changes to identify the parties and the area in
dispute, as Figure 1.:




                                              -3-
                                           Figure 1.

There are approximately 6 acres in conflict between Heath and Marjorie Keck and
approximately 35 acres in conflict between Heath and Cupp. To elaborate on what we have
previously stated and to help with orientation as to Figure 1., the 35 acres lays at the southern
portion of what Heath claims and the northern portion of what Cupp claims. It is more or
less rectangular, slightly wider east and west than it is north and south. The 6 acres in
dispute between Heath and Keck lays at the eastern side of what Heath claims and the
western side of what Keck claims. It is pie-shaped, with the point to the south.

                                               -4-
        Comparoni later testified that he had very little trouble with his survey other than at
the northwest Cupp corner that references a sassafras in the deed of Cupp’s predecessor.
Ultimately, he determined the location of the corner by talking to Mr. Doug Cardwell who
was shown the approximate location of the corner when he was involved in logging the
property for Russell Keck in the early 1980s. Cardwell did not know the exact location, but
could get within a few feet. Once given the approximate location by Cardwell, Comparoni
testified that everything more or less fell into place. The courses and distances matched
within acceptable tolerances and were also confirmed by natural monuments including the
reference to “top of hill,” the “field,” and other accepted corners. According to Comparoni,
Parsons’ survey was not consistent with the “top of anything.” Camporani formed an opinion
that Parsons merely surveyed according to what Heath pointed out and asked him to survey
and that Cupp’s and Marjorie Keck’s boundaries encompassed the disputed area.2

       Cupp and Keck filed this action (collectively “the Plaintiffs”).      Heath filed a
responsive pleading styled “ANSWER” which first addressed the 16 numbered paragraphs
of the complaint and then stated, without separation by heading or bold or distinctive type
or font of any nature as follows:

                Come your original Defendants, Bill Heath and wife, Virginia
                Heath, and would now assume the role of Counter Plaintiffs, and
                would show unto this Honorable Court as follows:

                1. As an affirmative defense to this cause of action, your
                Defendants would show the area of dispute has never been in
                dispute until the Plaintiffs purchased their property and more
                particularly, this property has been in the Defendant’s family
                since 1778 therefore, they have obtained the same by adverse
                possession if not by color of deed.

                Thereafter in November, 1975, the Defendants purchased
                property in question and attached to the farm that had previously
                been in the family for several generations; therefore, they own
                the same by adverse possession if not by color of title.

                2. Your Counter Plaintiffs would further show that they have
                paid taxes on the disputed area.


        2
        This is an overview of the background of the case. We will deal with the particulars of testimony
as needed in analyzing the issues and arguments.

                                                  -5-
              3. Your Counter Plaintiffs would further show that Bill Parsons
              surveyed the same and same was recorded of record and,
              therefore, the Plaintiffs are estopped to deny the same through
              their predecessors of title.

              4. As a further affirmative defense, predecessor in title, Russell
              Keck and Counter Plaintiff, Bill Heath agreed as to the line
              between the property of the parties and a fence was built at one-
              half of the costs paid by the Russells and one-half paid by the
              Heaths.

              5. As a further affirmative defense, the Russell Property was
              logged and logger was advised by Russell to contact Heath to
              locate the line prior to construction of the fence in that the
              Plaintiff’s predecessor in title relied upon Heath as to the
              location of the boundary between the parties prior to fencing.

              WHEREFORE, your Counter Plaintiff specifically defend title
              to the subject property by way of deed, adverse possession,
              recorded survey, payment of taxes, agreement between the
              parties, estoppels, latches [sic], and, therefore, demand that the

               Complaint filed against them be dismissed with attorney fees,
              discretionary costs and costs of this cause taxed to the Plaintiffs.

After hearing the proof, the court announced its findings and the reasons as follows:

              . . . I’ve given . . . all [the witnesses] the benefit of being
              truthful people. . . . They make mistakes, somebody has . . . .

              Right, wrong or indifferent, I’m going to decide it. I hope you’ll
              understand that it’s with no degree of animosity toward
              anybody. Everybody that’s involved is good people. They just
              have a difference of opinion, but this is what I think after
              listening to this lawsuit.

              And I want to be very careful and to not violate the Supreme
              Court’s statement one time that the trial court can’t be a witness.
              . . . . But Mr. Parsons has testified in this court . . . many times.



                                               -6-
              I’ve had lots of problems with Mr. Parsons. And this – Mr.
              [Comparoni] testified about some of these things so I’m – I’m
              using what he’s stating. . . . He has come into this Court with
              surveys where he did both of them and overlapped them.

                                           *   *     *

              . . . . He’s infamous for just letting somebody tell him where the
              corners are and not surveying and not having independent
              judgment. Furthermore, he’s not here as a witness, and I think
              if the parties of this lawsuit really thought that Mr. Parsons had
              a correct survey, that he would be here and he’s not.

              Doug Cardwell testified very plainly that he cut timber on this
              property very near the cleared field where he – He was loading
              timber close enough that he could see the cleared field. He said
              he had no conversations and nobody complained. These calls
              and distances on Mr. [Comparoni]’s survey fit this northern line.
              It does not fit – they do not fit the southern line.

              A lot of testimony in this case that the plaintiff in this matter cut
              firewood off this, they’ve cut timber on it, they’ve cut firewood
              off of it. But I think if we withdraw the survey of Mr. Parsons
              and just do away with it, that we have a completely different
              outlook.

              Now, Mr. Fultz is a very competent surveyor also, but he did not
              survey this property. He was hired to locate Mr. Parsons’
              corners, which he did. And he has problems with the southern
              line, and he does not believe the eastern line where the new
              fence is, is at all correct.

              Based upon all the testimony in this case, all these witnesses
              have testified; it is my opinion that the [Comparoni] suvey is the
              correct boundaries between the parties. . . .

       The court entered what purported to be a “FINAL DECREE” establishing the survey
of Comparoni as the boundary line. Heath appealed to this court. We ordered Heath to show
cause why the appeal should not be dismissed because “the final decree does not specifically
address the counterclaim filed by the appellants below or their claim for attorney’s fees.” We

                                               -7-
later ordered the matter remanded to the trial court “for the purpose of allowing the parties
to have entered an amended final decree resolving the issues left unresolved” by the trial
court’s previous order. Our order of remand directed the trial court to transmit the record of
any supplemental proceedings to this court for final disposition. On remand the trial court
entered an “AMENDED FINAL DECREE” in which if stated that

              insofar that the answer contained a counterclaim, that the same
              is hereby dismissed, and that no attorney fees or other
              discretionary cost are awarded to or against either the plaintiffs
              or the defendants.

                                              II.

       Heath raises the following issues which we have repeated verbatim:

              Did the trial court err as a matter of law in summarily ruling that
              the property boundary line dispute of this lawsuit should be
              determined by the [Comparoni] survey; whereas, [Heath’s]
              direct evidence of natural objects (landmarks) mentioned in the
              deed, artificial markers, prior surveys, and established fence
              lines by agreement of the landowners clearly preponderates
              against that ruling?

              Did the trial court err by not finding that the property in question
              was acquired by . . . Heath by adverse possession?

              Did the trial court err as a matter of law by not finding that
              [Heath was] entitled to the statutory protections of a rebuttable
              presumption of ownership under Tennessee Code Annotated §§
              28-2-109 & 28-2-110?

              Did the trial court err as a matter of law under Rule 7.01 & 8.04
              of the Tennessee Rules of Civil Procedure by not deeming the
              . . . Counter-Complaint as “admitted” by the [Plaintiffs] due to
              the fact that [they] did not file an Answer or any responsive
              pleading . . . ?




                                              -8-
                                             III.

        The standard of appellate review for the predominant issues in this case was
articulated in Wood v. Starko, 197 S.W.3d 255 (Tenn. Ct. App. 2006).

              The review of a decision rendered in a boundary dispute is de
              novo upon the record with a presumption of correctness as to the
              trial court's findings of fact, unless the evidence preponderates
              against those findings. Boarman v. Jaynes, 109 S.W.3d 286,
              290 (Tenn. 2003). In order for the evidence to preponderate
              against the trial court's findings of fact, the evidence must
              support another finding of fact with greater convincing effect.
              Rawlings v. John Hancock Mut. Life Ins. Co., 78 S.W.3d 291,
              296 (Tenn. Ct. App. 2001).

Id. at 257.

                                             IV.

       Heath argues that the evidence preponderates against the trial court’s finding that the
Comparoni survey correctly establishes the boundaries because (1) the trial court committed
errors of law in (a) not giving the proper weight to the Parsons’ survey as the first survey of
the boundary line in question and (b) not giving greater weight to the artificial monument of
the sassafras corner over the courses and distances used by Comparoni, and (2) the court
should have found an oral agreement as to the boundary line between Heath and Russell
Keck, Cupp’s predecessor in interest. We will deal with these arguments one point at a time.

      The argument that the first survey of a boundary line must always carry the greater
weight than a later survey, even if it is wrong, is a misapplication of language in the Starko
opinion. Heath relies heavily upon the following language from Starko:

              It has been declared that all the rules of law adopted for
              guidance in locating boundary lines have been to the end that the
              steps of the surveyor who originally projected the lines on the
              ground may be retraced as nearly as possible; further, that in
              determining the location of a survey, the fundamental principle
              is that it is to be located where the surveyor ran it. Any call, it
              has been said, may be disregarded, in order to ascertain the
              footsteps of the surveyor in establishing the boundary of the
              tract attempted to be marked on the land; and the conditions and

                                              -9-
              circumstances surrounding the location should be taken into
              consideration to determine the surveyor's intent.

                                          *    *     *

              The original survey must govern if it can be retraced. It must
              not be disregarded. So, too, the places where the corners were
              located, right or wrong, govern, if they can be found. In that
              case a hedge planted on the line established by original survey
              stakes was better evidence of the true line than that shown by a
              recent survey. In making a resurvey it is the surveyor's duty to
              relocate the original lines and corners at the places actually
              established and not to run independent new lines, even though
              the original lines were full of errors.

                                          *    *     *

              The line actually run is the true boundary, provided the essential
              survey can be found and identified as the one called for, and
              prevails over maps, plats, and field notes. . . . The lines marked
              on the ground constitute the actual survey and where those lines
              are located is a matter to be determined by the jury from all the
              evidence. If the stakes and monuments set at the corners of the
              parcel in making the survey have disappeared, it is competent to
              show their location by parol evidence.

                                          *    *     *

              Marked corners are conclusive and will control over courses and
              distances. Although stakes are monuments liable to be
              displaced or removed, they control so long as it is certain that
              they mark the corners of the original survey.

Id. at 259 -260 (citations and internal quotation marks omitted).

       Cupp correctly points out that Starko makes sense in the context of the facts of that
case but not this one. The original survey referenced repeatedly in Starko was done for the
common owner of two adjacent lots, both of which eventually were sold to separate owners.
Thus, the original surveyor’s attempt to created a line for the common owner that matched



                                              -10-
the subdivision layout carried controlling weight with regard to successors of the common
owner.

        A far different set of facts is presented in the case before this court. There is not a
common owner for whom Parsons was surveying. Parsons was surveying only for Heath.
Heath did not convey anything to Cupp or to Marjorie Keck. Parsons did not testify, but
Heath admitted that he showed Parsons the corners he claimed. Heath’s subsequent
surveyor, Fultz, had no idea how Parsons located the corners. Fultz was convinced, however,
that Parsons’ survey was incorrect insofar as it included the “pie shaped” parcel that, by deed,
belonged to Marjorie Keck. Heath’s southern boundary as surveyed by Parsons had the
effect of encompassing land that Marjorie Keck claimed and it obliterated any common
boundary between Cupp, and Marjorie Keck. For these reasons, Fultz admittedly informed
his client Heath, that there were major problems with claiming Marjorie Keck’s land through
the line surveyed by Parsons. In short, we have no criticism of the Starko opinion, but it is
simply not applicable to our facts. Absent adverse possession, there is no logical reason on
the facts of this case to bind Cupp or Marjorie Keck to an erroneous survey performed by
Parsons for Heath.

       Heath’s argument that the trial court’s refusal to accept the sassafras corner as marked
by Parsons as a definitive natural boundary marker is also a misapplication of a common rule
repeated in Starko, 197 S.W.3d at 258:

              [I]n Thornburg v. Chase, 606 S.W.2d 672, 675
              (Tenn.Ct.App.1980), this Court stated that “[i]n determining
              disputed boundaries, resort is to be had first to natural objects or
              landmarks, because of their very permanent character; next, to
              artificial monuments or marks, then to the boundary lines of
              adjacent landowners, and then to courses and distances.”

        Again, we conclude that the rule asserted by Heath is not applicable to our facts.
There was much dispute in the testimony in this case as to where the sassafras was located
and particularly whether the one marked by Parsons and later located by Fultz was the true
corner of Cupp and Heath. Even Fultz had to admit that if the sassafras as located by Parsons
is taken as the true corner, the subsequent calls lead to locations not claimed by any of the
parties as their corner. Heath admitted pointing out the corners to Parsons. The sassafras is
a call in the deed of Cupp’s predecessor – not in Heath’s deed. Comparoni gave four logical
reasons for refusing to accept the sassafras tree as surveyed by Parsons as the true corner: (1)
If the sassafras is accepted as the true corner, and the Parsons survey is treated as correct, it
makes the acreages as stated in all party deeds incorrect; (2) The sassafras corner does not
match with any of the topography or distances of subsequent calls; (3) The description of the

                                              -11-
corner with Russell Keck in Heath’s deed is “in the line of Collins” and not at a corner with
adjoiner Collins which should place the tree north of where Parsons located it, and (4) When
Doug Cardwell gave surveyor Comparoni the approximate location of the true corner as told
to Cardwell by Russell Keck and Sylvester Collins, everything came into focus and made
sense. The courses and distances matched the topography of a ridge which is also a natural
monument. Further, there is an old fence line that corresponds to the location that
Comparoni marked as the true corner. There is no fence other than the one erected by Heath
in 2008 at the location surveyed by Parsons.

       Comparoni’s testimony is supported by the testimony of Fred Cupp who tended the
property of Russell Keck’s widow, Chrisine, for many years. He was shown the plat
prepared by Comparoni and confirmed that the northern boundary of Christine Keck was as
surveyed by Comparoni. Glenn Cupp testified that in his youth he helped Fred Cupp and the
people that worked for Fred repair a fence in the proximity of the northern boundary as
surveyed by Comparoni.

        Heath makes much of the fact that Cardwell admitted on cross-examination that he
did not know the exact location of the sassafras, and that Comparoni admitted basing his
location of the corner, at least in part, on the parole conversation with Cardwell. We have
reviewed Cardwell’s testimony in detail and conclude that Heath overstates the impeachment
of Cardwell. The conversation of Cardwell with Comparoni was confirmed by the testimony
of Glenn Cupp, who was present. Also, Cardwell’s testimony is consistent with Comparoni’s
in that Cardwell told the surveyor that he could get “close” but could not pinpoint the
location of the corner because both Russell Keck and Sylverster Collins pointed him to an
approximate location, within a few feet of the corner. Cardwell is not the only witness who
put the northern boundary of Russell Keck and his successor, Glenn Cupp, in accord with the
corner as established by Camporoni. Further, even Heath’s surveyior Fultz virtually admits
that Marjorie Keck, who is Glenn Cupp’s adjoining landowner to the east, owns to the
general proximity of where Comparoni has surveyed the line, which places her true line far
to the north of where Parsons surveyed it. It is perfectly logical that Parsons moved Russell
Keck in the same mistaken amount to the south that he moved Marjorie Keck’s line. Also,
Fultz admitted that the Parsons survey left out any reference to the fence that corresponds to
the fence that approximates the boundary as established by Comparoni. Fultz admitted that
this was a troubling omission. Our review of the record de novo convinces us that the
evidence does not preponderate agasinst the trial court’s finding that the Comparoni survey
correctly establishes the boundary line between Heath and Glenn Cupp and Marjorie Keck.

      Heath also argues that the trial court erred in not finding that there was a binding
boundary line agreement. For the law in support of his argument, Heath quotes the following
from Jack v. Dillehay, 194 S.W.3d 441 (Tenn. Ct. App. 2005):

                                             -12-
             It is well settled that parties owning adjoining lands may by
             agreement establish a boundary line between their land where
             there is no certain and established line known to them. Such an
             agreement may be established by oral agreement and is not
             subject to the statute of frauds. In order to establish the
             existence of an oral boundary agreement, a party must prove that

                    [t]he boundary line fixed by the [oral] agreement
                    . . . [is] definite, certain, and clearly marked, and
                    that it . . . [is] made by adjoining landowners with
                    reference to the uncertain or disputed boundary
                    line between their lands. . . . In order to enforce an
                    oral agreement to establish the location of a
                    boundary line, the parties must show: 1) a dispute
                    or uncertainty as to the true location of the
                    boundary line; 2) the agreement of the parties or
                    their predecessors in interest as to the location of
                    the boundary; 3) that the boundary line
                    established by the oral agreement is definite and
                    certain; and 4) possession and use of the property
                    up to the agreed boundary by the parties or their
                    predecessors in interest, or acquiescence in the
                    boundary line.

             Once parties establish a boundary line pursuant to oral
             agreement, they and their successors are estopped from
             challenging the line, even if it is later discovered that the parties
             were mistaken as to the location of the line at the time of the
             agreement.

Id. at 447-48 (citations and internal quotation marks omitted; emphasis, omissions and
brackets in original). As to the facts necessary to invoke the rule, Heath states,

             Ronnie Collins and Christine Keck knew of the two surveys of
             the fence line. Ronnie Collins and Christine Keck agreed to the
             location of the fence. Christine Keck, predecessor in title to ...
             Glenn Cupp, also relied upon the judgment of Bill Heath
             knowledge of the location of the line. Furthermore, Christine
             Keck requested that the [Heaths] share in the cost of maintaining



                                             -13-
              the fence in which the [Heaths] paid their half of the labor and
              costs.

        We disagree with Heath that the facts support the finding of a boundary line
agreement. The trial court noted that this is a troubling case because of so much conflict in
the testimony of decent, credible witnesses. The court ascribed the conflict to honest mistake
and proceeded to resolve the conflict based upon the preponderance of the evidence. It is
true that Ronnie Collins agreed that the sassafras tree as surveyed by Parsons established his
boundary, but his sole basis for that belief was the Parsons survey. Further, Collins did not
testify the Russell Keck, Cupp’s predecessor, agreed to the corner. It is also true that one
witness who did some logging on Christine Keck’s property testified that Christine Keck told
him to check with Heath for the location of the boundary line. However, that witness’s
testimony was contradicted by proof that Keck did not want to sell to Heath because of
differences they had over the years, by the testimony of Fred Cupp that he tended the farm
for Christine Keck and the boundary was as established by Comparoni, and by the testimony
of Cardwell. Also, noticeably absent from Heath’s testimony is any assertion that Christine
Keck explicitly stated that she agreed to the line as surveyed by Parsons. In fact, the
testimony of Fultz was to the effect that there had been some heated disagreements over the
years as to the true boundary. There is no testimony to suggest that Marjorie Keck agreed
to the Parsons survey; there is significant testimony that she did not agree to it. The evidence
does not preponderate against the trial court’s refusal to find a binding boundary line
agreement to the line surveyed by Parsons.

        At various places in their brief, the Heaths assert that strong evidence of their
boundary, and of agreement by Cupp’s predecessor Christine Keck, is payment by Virginia
Heath of Fred Cupp for some fencing work and her reimbursement of Christine Keck for
materials. However, we do not agree with Heath that the payment is as weighty as argued.
Fred Cupp first denied being paid anything by Heath, but later recalled in rebuttal testimony
that he was paid for patching some fence. The checks are for $36 to Fred Cupp and $21.25
to Christine Keck, hardly enough for a line fence. Moreover, Fred Cupp maintained that the
patching was done on fence in the location of the line established by Comparoni.

       Heath next argues that the trial court erred in not finding acquisition by adverse
possession. Heath argues his possession has been exclusive, actual, adverse, continuous,
open and notorious for twenty years. He relies on Tennessee Jurisprudence, Vol. 1, §§ 2-4
(Supp. 2010) for the elements of adverse possession. Heath is guilty in this argument of
accounting only for the facts that are favorable to his position. That is not the correct
analysis as the Plaintiffs point our in their brief. The question of whether a neighboring
landowner has acquired title by adverse possession is a question of fact. Wilson v. Price, 195
S.W.3d 661, 666 (Tenn. Ct. App. 2005). The party claiming by adverse possession has the

                                              -14-
burden of proving his or her claim “by clear and convincing evidence.” Id. The evidence
of adverse possession is to be viewed critically with every reasonable presumption given in
favor of the title owner. Bone v. Loggins, 652 S.W.2d 758, 760 (Tenn. Ct. App. 1982). Bill
Heath admitted that he made no use of the Marjorie Keck property and that in fact she had
it timbered after the Parsons survey and he took absolutely no action. The only testimony
that he offered of making use of the property within Cupp’s boundary line was, “[j]ust grow
timber.” Fultz testified that any flagging and marking done by Parsons had disappeared by
the time he performed his work. Further, given the testimony of Fred Cupp and Cardwell,
any use by Heath fell short of being “continuous” and “exclusive.” In short, we hold that the
trial court did not err in failing to find adverse possession by Heath.

       Heath argues that the trial court erred in failing to accord a presumption of ownership
based on payment of taxes on the disputed area for 20 years and nonpayment by the Plaintiffs
for 20 years. Heath relies on Tenn. Code Ann. §§ 28-2-109 & 110(a)(2000). Those
provisions, respectively, state:

              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 then 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 of 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.

              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.

        Heath argues that payment of taxes is an issue he addressed with the trial court and
that the Plaintiffs did not even argue the point. Heath is not correct. Heath broached the

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subject with Comparoni on cross-examination. Comparoni had researched the tax records
as part of his work. He testified that Heath paid taxes on only 107 acres until 1990. In 1991,
after the Parsons survey “expanded” his acreage, Heath paid taxes on 156 acres. Cupp’s
predecessor Christine Keck paid taxes on 118.5 acres consistently, before and after 1990,
until 2007 when the taxed acreage fell to 81 acres. Comparoni addressed most of these facts,
with the possible exception of dates, during his direct examination. Marjorie Keck paid taxes
on 42.5 acres consistently, before and after 1990. Counsel for the Plaintiffs pointed out in
his closing argument that the predecessor to Cupp paid taxes on the area in dispute until
2007.

       The preponderance of the evidence is that both sides of this dispute paid taxes on the
disputed property. Furthermore, the payment by Heath on increased acreage per the Parsons
survey did not begin until 1991, less than 20 years before this action was filed. Therefore,
there was no error in the failure to accord Heath a statutory presumption of ownership for
payment of taxes and for the alleged non-payment by the Plaintiffs.

        Heath’s final argument is that the Plaintiffs admitted the counterclaim by not
answering it. Therefore, so goes the argument, Heath wins. There is no merit in Heath’s
argument. The alleged counterclaim is contained in a document styled “ANSWER.” The
document has no separate or conspicuous heading showing that it also contains a
counterclaim. After answering the numbered allegation in the Plaintiffs’ complaint, the
Heaths purport to assume the role of “Counter Plaintiffs” but all assertions that follow are
phrased in terms of “affirmative defense[].” The Heaths did not pray for any relief other than
“demand that the Complaint filed against them be dismissed with attorney fees. . . taxed to
the Plaintiffs.” The theories asserted by the Heaths were all tried on the merits and
determined in favor of their adversaries. To the extent Heath stated a claim for relief in the
“counterclaim” it was their obligation to bring the alleged default to the trial court’s
attention. See Tenn. R. Civ. P. 55.01. The trial court had no obligation to enter default sua
sponte, without motion or notice to the Plaintiffs. Id. Heath does not even argue that such
a motion was made. The failure to move the court for default resulted in a waiver of the
Plaintiffs failure to answer the counterclaim. Story v. Lanier, 166 S.W.3d 167, 183 (Tenn.
Ct. App. 2004). Thus, the trial court did not err in refusing to grant judgment against the
Plaintiffs based on their alleged failure to answer a counterclaim.

                                             V.

       The judgment of the trial court is affirmed. Costs on appeal are taxed to the
appellants, Bill Heath and wife Virginia Heath. This case is remanded, pursuant to
applicable law, for enforcement of the trial court’s judgment and for collection of costs
assessed below.

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_______________________________
CHARLES D. SUSANO, JR., JUDGE




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