                IN THE COURT OF APPEALS OF TENNESSEE
                             AT JACKSON
                                 March 22, 2011 Session

              ELMER ELLIOTT, JR. v. PEARL ELLIOTT, ET AL.

       Direct Appeal from the Chancery Court for Gibson County, at Trenton
                     No. 18, 830  George R. Ellis, Chancellor


                  No. W2010-02085-COA-R3-CV - Filed May 4, 2011


The trial court granted summary judgment to defendants, finding that plaintiff was ousted
from the property at issue, that defendant Pearl Elliott was the presumptive owner of the
property due to recordation and payment of property taxes, and that plaintiff’s suit was
statutorily barred. We affirm.


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

A LAN E. H IGHERS, P.J., W.S., delivered the opinion of the Court, in which D AVID R. F ARMER,
J., and J. S TEVEN S TAFFORD, J., joined.

Bill R. Barron, Trenton, Tennessee, for the appellant, Elmer Elliott, Jr.

C. Mark Donaoho, Magan N. White, Jackson, Tennessee, for the appellees, Pearl Elliott, et
al
                                               OPINION

                              I.   F ACTS & P ROCEDURAL H ISTORY

       The pertinent facts of this case have been previously set forth in the opinion of this
Court issued on August 10, 2010:

                This appeal arises from an action to determine the rightful ownership
        of a 63-acre tract of real property in Gibson County filed by Elmer Elliot[t],
        (Mr. Elliot[t]) in the Chancery Court for Gibson County in April 2008.1 In his
        complaint, Mr. Elliot[t] asserted that he is the owner of a one-third undivided
        interest in the property; that a 1939 order awarding 23 acres of the property to
        Ruth Word Talbert and 39 acres to Cad Elliot[t] was obtained by either error
        or fraud; and that named Defendants Pearl Elliot[t] and her son, Robert
        Elliot[t] (collectively, “the named Defendants”), own a combined two-thirds
        interest in the property. Mr. Elliot[t] prayed for the 1939 order to be set aside
        and considered void; for a declaration that he is the owner of a one-third
        undivided interest in the property; that the deeds to the property be reformed;
        for partition of the 63-acre tract; for one-third of all rents and profits obtained
        from the property, plus interest; and for attorney’s fees to be paid from the
        common fund.

                The named Defendants answered in July 2008, asserting that Pearl
        Elliot[t] is the rightful owner of the property in fee simple. They further
        asserted ownership by adverse possession and asserted the affirmative defenses
        of laches; the statute of limitations; the statute of repose; and equitable
        estoppel. The named Defendants also asserted that Mr. Elliot[t] had failed to
        plead fraud with specificity or particularity as required by Tennessee Rules of
        Civil Procedure 9.02. In October 2008, the named Defendants moved for
        summary judgment, asserting there were no genuine issues of material fact;
        that Pearl Elliot[t] was the presumed owner under Tennessee Code Annotated
        § 29-2-109; and that Mr. Elliot[t]’s claim was barred under Tennessee Code
        Annotated § 28-2-110. Mr. Elliot[t] responded and filed a cross-motion for
        summary judgment in October 2008. In his motion, Mr. Elliot[t] asserted,
        inter alia, that he had not been ousted by the named Defendants and that his
        claim of ownership was not, therefore, statutorily barred.



        1
         In June 2008, the trial court entered a consent order consolidating the 2008 action with an action
previously commenced by Mr. Elliott in 2005.

                                                   -2-
               Following a hearing in August 2009,2 the trial court awarded summary
       judgment to the named Defendants and dismissed “all other motions.” The
       trial court entered its order on January 12, 2010, and Mr. Elliot[t] filed a notice
       of appeal on January 25, 2010.

Elliott v. Elliott, No. W2010-00302-COA-R3-CV, 2010 WL 3155220, at *1 (Tenn. Ct. App.
Aug. 10, 2010) (footnotes in original).

       Because the style of the cause included potential “unknown heirs,” and it did not
appear that the trial court had determined whether such heirs existed or that it had entered an
order dismissing either the unnamed heirs or the claims against them, we dismissed the
appeal for failure to appeal a final judgment on August 10, 2010. On remand, the trial court
entered a “Final Judgment,” finding that no “unknown heirs” existed, and dismissing the
complaint against them. Unlike its order granting summary judgment, the trial court’s “Final
Judgment” included the following findings:

       1. Ms. [Pearl] Elliott has paid taxes on the disputed property for a period of
       more than twenty years and has a deed to the property recorded in the register’s
       office for a period of at least twenty years. Accordingly, Ms. Elliott is the
       presumptive owner of the real property pursuant to Tennessee Code Annotated
       section 28-2-109.

       2. The Plaintiff never paid taxes on the disputed property.

       3. The Plaintiff is barred from bringing this lawsuit against Ms. Elliott
       pursuant to Tennessee Code Annotated section 28-2-110(a).

       4. Ms. Elliott enjoyed exclusive and uninterrupted possession of the disputed
       property for more than forty years claiming the land as her own.

       5. Although the Plaintiff believed for some time that he owned a share of the
       property and engaged in discussions with Ms. Elliott for several years
       regarding the ownership of the property, the Plaintiff continued to allow Ms.
       Elliott to reside on the property, pay the taxes, and collect rent without an
       accounting.

       6. Ms. Elliott was aware of the Plaintiff’s claims of ownership to the property
       but maintained that the Plaintiff did not deserve an ownership interest in the

       2
           It appears that no transcript was generated at the hearing.

                                                      -3-
       property.

       7. Although the Plaintiff once resided on the property, Ms. Elliott kicked him
       out of the residence and off the property.

       8. Accordingly, Ms. Elliott ousted the Plaintiff from the property, and the
       Plaintiff is not entitled to any share of the property.

Following entry of the “Final Judgment,” Plaintiff filed a second notice of appeal on
September 30, 2010.


                                    II.   I SSUE P RESENTED

       Appellant presents the following issue for review:

1.     Whether the trial court erred in granting Defendants’ motion for summary judgment.

For the following reasons, we affirm the trial court’s grant of summary judgment.


                                 III. S TANDARD OF R EVIEW

         A motion for summary judgment should be granted only “if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that the moving party is entitled to
a judgment as a matter of law.” Tenn. R. Civ. P. 56.04. “The party seeking the summary
judgment has the burden of demonstrating that no genuine disputes of material fact exist and
that it is entitled to a judgment as a matter of law.” Green v. Green, 293 S.W.3d 493, 513
(Tenn. 2009) (citing Martin v. Norfolk S. Ry., 271 S.W.3d 76, 83 (Tenn. 2008); Amos v.
Metro. Gov't of Nashville & Davidson County, 259 S.W.3d 705, 710 (Tenn. 2008)). “When
ascertaining whether a genuine dispute of material fact exists in a particular case, the courts
must focus on (1) whether the evidence establishing the facts is admissible, (2) whether a
factual dispute actually exists, and, if a factual dispute exists, (3) whether the factual dispute
is material to the grounds of the summary judgment.” Id. Not every factual dispute requires
the denial of a motion for summary judgment. Id. at 514. To warrant denial of a motion for
summary judgment, the factual dispute must be material, meaning “germane to the claim or
defense on which the summary judgment is predicated.” Id. (citing Eskin v. Bartee, 262
S.W.3d 727, 732 (Tenn. 2008); Luther v. Compton, 5 S.W.3d 635, 639 (Tenn. 1999)).



                                               -4-
       The resolution of a motion for summary judgment is a matter of law, which we review
de novo with no presumption of correctness. Martin, 271 S.W.3d at 84. However, “we are
required to review the evidence in the light most favorable to the nonmoving party and to
draw all reasonable inferences favoring the nonmoving party.” Id. (citing Staples v. CBL
& Assocs., Inc., 15 S.W.3d 83, 89 (Tenn. 2000)). Summary judgment is appropriate “when
the undisputed facts, as well as the inferences reasonably drawn from the undisputed facts,
support only one conclusion--that the moving party is entitled to a judgment as a matter of
law.” Green, 293 S.W.3d at 513 (citing Griffis v. Davidson County Metro. Gov't, 164
S.W.3d 267, 283-84 (Tenn. 2005); Pero's Steak & Spaghetti House v. Lee, 90 S.W.3d 614,
620 (Tenn. 2002)).

                                      IV. D ISCUSSION

        On appeal, Mr. Elliott argues that the trial court erred in granting summary judgment
to the defendants because material issues of fact are in dispute. Specifically, he asserts that
he owns a one-third undivided interest in the property as a co-tenant of the defendants.
Because of this co-tenancy, he maintains, his claim of ownership is not statutorily barred in
the absence of ouster, which he claims has not been shown.

      The defendants maintain that they are entitled to a presumption of ownership pursuant
to Tennessee Code Annotated section 28-2-109:
       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
       th[a]n 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.

They further contend that Tennessee Code Annotated section 28-2-110(a) bars Mr.
Elliott’s cause of action:

       (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


                                              -5-
       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.


        It is undisputed in this case that defendant Pearl Elliott paid the taxes on the property
at issue for a period of more than twenty years and that plaintiff Mr. Elliott never paid any
taxes on the property. Apparently the recordation of Pearl Elliott’s interest is also
undisputed. However, Mr. Elliott argues that the above-cited statutes are inapplicable
because he is a tenant in common with the defendants, Pearl and Robert Elliott, his aunt and
cousin, respectively. The defendants contend that even if the parties are tenants in common,
that Mr. Elliott has been effectively ousted from the property, and thus, that the statutes are
applicable.


        “Ordinarily, a tenant in common is presumed to hold on behalf of himself and all other
co-tenants, and therefore the possession of one tenant in common is not ordinarily held to be
hostile to the co-tenants.” Howell v. Howell, No. 01A01-9806-CV-00301, 1999 WL 536261,
at *9 (Tenn. Ct. App. W.S. July 27, 1999) (citing Moor v. Cole, 289 S.W.2d 695 (Tenn.
1956)). Mr. Elliott is correct in his assertion that sections 28-2-109 and 28-2-110(a) do not
operate to bar a claim by a tenant in common against another tenant in common in the
absence of ouster. See Phillips v. Pittsburgh Consol. Coal Co., 541 S.W.2d 411, 413 (Tenn.
1976) (citing Moore v. Cole, 289 S.W.2d 695 (Tenn. 1956); Memphis Housing Auth. v.
Mahoney, 359 S.W.2d 851 (Tenn. Ct. App. 1962)); see also Scott v. Yarbro, No. W2008-
00090-COA-R3-CV, 2008 WL 4613979, at *7 (Tenn. Ct. App. Oct. 15, 2008). “‘An ouster,
in the law of tenancy in common, is the wrongful dispossession or exclusion by one tenant
in common of his cotenant or cotenants from the common property of which they are entitled
to possession.’” Envision Props., LLC v. Johnson, No. E2005-00634-COA-R3-CV, WL
2860195, 2005 WL 2860195, at *5-6 (quoting Moore v. Cole, 289 S.W.2d 695, 699 (Tenn.
1956)). An “‘ouster does not necessarily mean a physical expulsion of one party by another,
but it requires the party claiming adversely to perform some act that makes it clear to his
cotenant that she is being excluded from ownership.’” Id. (quoting Nesmith v. Alsup, No.
01A01-9809-CH00509, 1999 WL 557620, at *4 (Tenn. Ct. App. M.S. Aug. 2, 1999)). Our
Supreme Court has explained “ouster” as follows:
       This ouster by one tenant in common against his cotenant may occur, but it
       takes something more than an appropriation of the rents without an accounting.
       The mere silent, sole occupation by one of the entire property, though he be
       claiming the whole estate, and appropriating the whole rents, without an
       accounting to or claim by the others, without notice to his cotenant that his
       possession is adverse, and unaccompanied by some act which can amount to
       an exclusion and ouster of the cotenant, cannot be construed into an adverse


                                               -6-
       possession. This ouster and exclusion may be effected by taking possession
       and affording actual notice of a claim of sole ownership or other positive and
       unequivocal act that must by its nature put the other cotenants upon notice that
       they are excluded from the possession.
Id. (quoting Drewery v. Nelms, 177 S.W. 946, 948 (Tenn. 1915)). “‘When one attempts to
set up an ouster as between tenants in common the evidence should be viewed by the court
most strongly against that person who attempts to set up an ouster and in favor of the tenant
in common who makes no such attempt.’” Id. (quoting Moore, 289 S.W.2d at 699).

        In the present case, Mr. Elliott admits that he and defendant Pearl Elliott “have had
communication about [the property rights] for several years.”                  During these
“communications,” Mr. Elliott apparently expressed his belief that he had inherited an
interest in the property from his father, although he was uncertain as to the extent of such
interest. According to Mr. Elliott, however, defendant Pearl Elliott never acknowledged Mr.
Elliott’s alleged interest. Instead she “denied that [Mr.] Elliott owned anything.”

        Mr. Elliott contends that because defendant Pearl Elliott refused to acknowledge the
existence of a tenancy in common between the parties, ouster cannot be shown. Mr. Elliott
relies upon the case of Howell v. Howell, No. 01A01-9806-CV-00301, 1999 WL 536261, at
*9 (Tenn. Ct. App. W.S. July 27, 1999), in which this Court stated that “where all cotenants
are ignorant of the co-tenancy none can be ousted, and the property cannot be adversely
possessed.” Howell, 1999 WL 536261, at *9, 10 (citing Denton v. Denton, 627 S.W.2d 124
(Tenn. Ct. App. 1981)) (emphasis added). Mr. Elliott, however, misapprehends the
knowledge required to effect an ouster. Because an ouster may be accomplished “by taking
possession and affording actual notice of a claim of sole ownership[,]” Drewery, 177 S.W.
at 948, the acknowledgment of a co-tenancy by both parties is not required.




                                             -7-
        We find that defendant Pearl Elliott’s refusal to acknowledge plaintiff’s alleged
interest and her claim of sole ownership, coupled with her testimony that she forced Mr.
Elliott to move from the property3 establishes an ouster of Mr. Elliott. Accordingly, we find,
pursuant to Tennessee Code Annotated sections 28-2-109 and 28-2-110(a), that defendant
Pearl Elliott’s payment of taxes for more than twenty years bars Mr. Elliott’s cause of action.
The trial court’s grant of summary judgment to the defendants is affirmed.4


                                            IV.    C ONCLUSION

       For the aforementioned reasons, we affirm the trial court’s grant of summary
judgment to the defendants. Costs of this appeal are taxed to Appellant, Elmer Elliott, Jr.,
and his surety, for which execution may issue if necessary.




                                                            ALAN E. HIGHERS, P.J., W.S.




        3
          In his brief, Mr. Elliott argues that “Mrs. Pearl Elliott required [Mr. Elliott] to leave the house for
misbehavior as a young seventeen year old, not as an owner.” However, Mr. Elliott, born in 1926, alleges
that he inherited his father’s interest in the property when his grandfather died in 1936. Thus, his alleged
interest must have vested prior to his departure from the home.
        4
         At oral argument, the defendants argued that the 1939 order excluded Mr. Elliott’s father from
ownership, and therefore, that Mr. Elliott had no interest to bring this suit. However, because we find that
even if there existed a co-tenancy among the parties, that Mr. Elliott was effectively ousted, we need not
address this issue.

                                                      -8-
