                IN THE COURT OF APPEALS OF TENNESSEE
                           AT KNOXVILLE
                                  March 6, 2013 Session

                ALMA B. LONG V. RAYMOND G. CREEKMORE

                Appeal from the Chancery Court for Campbell County
                    No. 08087 Hon. Billy J. White, Chancellor




                 No. E2012-01453-COA-R3-CV - Filed March 28, 2013


This appeal concerns Mother’s reservation of a life estate in property she conveyed to Son
pursuant to a warranty deed. After the initial conveyance in 1983, Son resided on the
property for years before renting the property to others. Mother prohibited the use of the
property by certain tenants, who complied with her demand to vacate. In 2008, Mother
objected to the current tenant’s occupation and filed suit to enforce her right to possession
of the property. The trial court dismissed the suit, finding that the claim was barred by a ten-
year statute of limitations. Mother appeals. We reverse the grant of summary judgment and
remand for proceedings consistent with this opinion.

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

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

J. Steven Hurst, LaFollette, Tennessee, for the appellant, Alma B. Long.

Victor C. Pryor, LaFollette, Tennessee, for the appellee, Raymond G. Creekmore.

                                          OPINION

                                    I. BACKGROUND

        In 1983, Alma B. Long (“Mother”), signed a warranty deed which conveyed a portion
of her property to her son, Raymond G. Creekmore (“Son”), and her daughter-in-law, Ursula
Creekmore, subject to the following reservation:
        Grantor reserves unto herself a life estate for and during her natural lifetime
        in and to the above described property.

Son lived on the property with Ms. Creekmore until they separated. Ms. Creekmore
remained on the property. Mother’s attorney mailed Ms. Creekmore a letter, dated July 5,
1990, which provided, in pertinent part:

        By deed dated August 30, 1983, [Mother] conveyed certain land to [Son] and
        wife, Ursula Creekmore, which deed was recorded in [] the Register’s Office
        for Campbell County, Tennessee, on August 31, 1983, [Mother] reserved a life
        estate in the subject property. Under Tennessee law, [Mother] therefore
        retained a right of possession and control of this property during her lifetime.

        [Mother] hereby give[s] notice that she wants possession of the subject
        property and for you to vacate the premises on or before Thursday, July 19,
        1990. In the event you do not voluntarily surrender the premises, without
        damages and in good condition, [Mother] has instructed me to file a detainer
        action and take other legal action as may be appropriate to remove you from
        the premises and to collect any damages to which she may be entitled.

Ms. Creekmore complied with the demand to vacate.1 Son returned and began renting his
mobile home on the property to others. Son retained the rental income and paid the taxes on
the mobile home, while Mother paid the taxes on the property.

        The first renters, Mike and Anna Wilson, remained on the property for several years.
Mother did not object to the presence of the Wilsons and never asked for any portion of the
rental income. Mike Wilson moved out a few years after Anna Wilson died. Thereafter, the
second renters, Floyd and Ellen Voyles, moved onto the property. Mother did not
“particularly care” for Ellen Voyles and eventually mailed her and Mr. Voyles a letter, dated
August 20, 2007, which provided, in pertinent part,

        I, Alma Long, hereby give notice that I want possession of the subject
        property, and for you to vacate the premises on or before Wednesday,
        [September 19, 2007]. In the event you do not voluntarily surrender the
        premises, without damage, and in good condition, I will file a retainer action
        and take other legal action as may be appropriate to remove you from the




1
 Ms. Creekmore allegedly forfeited her interest in the property pursuant to her divorce agreement with Son.
She is not a party in this appeal.
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       premises and collect any damages to which I may be entitled. This includes
       the dilapidated building that you put there.

After speaking with Son, Floyd and Ellen Voyles eventually complied with Mother’s demand
to vacate the premises.

        In May 2008, Son’s stepson, Jason Hackler, moved onto the property. Mr. Hackler
did not submit rent but was present to care for Son, who had been diagnosed with cancer.
Mr. Hackler erected a fence around the mobile home to contain his dogs. Mother objected
to the fence and eventually objected to Mr. Hackler’s presence on the property.

       When Mr. Hackler refused to vacate, Mother filed suit against Son. The complaint,
filed on July 25, 2008, provided, in pertinent part,

       Plaintiff avers that she transferred a small portion of the property to [Son],
       reserving a life estate interest therein. Plaintiff avers this occurred in 1983.

       Plaintiff avers that [Son] has put a trailer on the property and at one time has
       lived there on the property. Plaintiff avers that [Son] no longer resides on the
       property, and is allowing others to use same.

       Plaintiff avers that the persons using the property by permission of [Son] are
       now constructing a fence on same, and generally have been disruptive toward
       her. Plaintiff avers that she wishes to exercise her right to possess the property
       pursuant to her life estate, thereby removing [Son] therefrom.

       Plaintiff avers that she wishes for [] immediate possession and asks that
       temporary and permanent injunction be issued against [Son], and other persons
       under his direction or with his approval from being on the property or utilizing
       the same in any manner.

       Plaintiff avers that [Son] has constructed and placed a trailer on said property,
       which can be moved. Plaintiff avers that if [Son] wishes to remove the trailer
       from the property she does not object to same; however in the event he does
       not remove the trailer from the property she intends to use the same.

Son denied that Mr. Hackler was disruptive toward Mother and asserted that Mother did not
have a right to possess the property. He claimed that Mother’s right to possess the property
was barred by the applicable statute of limitations and the doctrine of laches. He filed a



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counter-complaint, requesting compensation for his improvement of the property in the event
that the court determined that Mother was entitled to possession of the property.

        Son also filed a motion for summary judgment, in which he alleged that he was
entitled to a judgment as a matter of law because the statute of limitations barred Mother’s
recovery of the property, because he had adversely possessed the property, and because she
had surrendered the property. Mother responded by asserting that genuine issues of material
fact were in dispute relative to Son’s assertions of adverse possession and surrender. She
also argued that the statute of limitations did not bar her recovery of the property because she
had not filed an ejectment action but had merely asserted her right to possession of the
property as a life tenant. She also filed a motion for summary judgment, asserting that she
had the right to the use, control, and enjoyment of the property as a life tenant.

        The trial court granted Son’s motion for summary judgment on the ground that the
statute of limitations for bringing an ejectment action had expired, finding that Mother’s
demand for possession in 1990 had “commenced the running of the statute of limitations”
but that the “ejectment filed more tha[n] eighteen (18) years after the demand for possession
[wa]s barred by a ten (10) year statute of limitations.” The court did not address the
remaining grounds raised in Son’s motion before dismissing the cause of action. This timely
appeal followed.

                                          II. ISSUE

       We consolidate and restate the issues raised on appeal as follows:

       Whether Mother’s claim for possession was barred by a ten-year statute of
       limitations.

                              III. STANDARD OF REVIEW

        Summary judgment is appropriate where: (1) there is no genuine issue with regard to
the material facts relevant to the claim or defense contained in the motion and (2) the moving
party is entitled to judgment as a matter of law on the undisputed facts. Tenn. R. Civ. P.
56.04. A properly supported motion for summary judgment “must either (1) affirmatively
negate an essential element of the nonmoving party’s claim; or (2) show that the nonmoving
party cannot prove an essential element of the claim at trial.” Hannan v. Alltel Publ’g Co.,
270 S.W.3d 1, 9 (Tenn. 2008). When the moving party has made a properly supported
motion, the “burden of production then shifts to the nonmoving party to show that a genuine
issue of material fact exists.” Id. at 5; see Robinson v. Omer, 952 S.W.2d 423, 426 (Tenn.
1997); Byrd v. Hall, 847 S.W.2d 208, 215 (Tenn. 1993). The nonmoving party may not

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simply rest upon the pleadings but must offer proof by affidavits or other discovery materials
to show that there is a genuine issue for trial. Tenn. R. Civ. P. 56.06. If the nonmoving party
“does not so respond, summary judgment, if appropriate, shall be entered.” Tenn. R. Civ.
P. 56.06.

        On appeal, this court reviews a trial court’s grant of summary judgment de novo with
no presumption of correctness. See City of Tullahoma v. Bedford Cnty., 938 S.W.2d 408,
412 (Tenn. 1997). In reviewing the trial court’s decision, we must view all of the evidence
in the light most favorable to the nonmoving party and resolve all factual inferences in the
nonmoving party’s favor. Luther v. Compton, 5 S.W.3d 635, 639 (Tenn. 1999); Muhlheim
v. Knox. Cnty. Bd. of Educ., 2 S.W.3d 927, 929 (Tenn. 1999). If the undisputed facts support
only one conclusion, then the court’s summary judgment will be upheld because the moving
party was entitled to judgment as a matter of law. See White v. Lawrence, 975 S.W.2d 525,
529 (Tenn. 1998); McCall v. Wilder, 913 S.W.2d 150, 153 (Tenn. 1995).

                                     IV. DISCUSSION

       Mother contends that the court’s reliance upon the statute of limitations allegedly
applicable to ejectment actions was erroneous. She argues that her possessory interest in the
property as a life tenant was not subject to a statute of limitations. She alternatively argues
that her cause of action did not accrue until 2008, when the current tenant refused to vacate.
She notes that the prior use of the property was permissive and that she filed suit when the
use of the property exceeded her permission. Son responds that the trial court properly
characterized the suit as an ejectment action. Relying upon this court’s decision in Roach
v. Renfro, 989 S.W.2d 335 (Tenn. Ct. App. 1998), he claims that Mother’s claim was barred
by the applicable ten-year statute of limitations.

        Despite Son’s assertion to the contrary, this court declined to rule upon whether a
specific statute of limitations was applicable in Roach. 989 S.W.2d at 341. This court held
that the ejectment claim was not time-barred because the owner filed suit shortly after the use
of his property exceeded his permission. Id. Unlike Roach, each party in this case retained
a possessory interest in the property pursuant to a warranty deed. Mother retained a present
possessory interest for her lifetime, and Son received a future possessory interest. See
generally Couch v. Hoover, 79 S.W.2d 807, 810 (Tenn. Ct. App. 1934) (providing that a deed
awarding land to a “certain person at the death of the giver” operates as a “present grant of
a future interest”). Mother merely needed to assert her right as a life tenant and obtain a
declaratory judgment when Son’s use of the property exceeded her permission. Such a claim
is not subject to a statute of limitations because a life tenant holds the property for the
duration of his or her life. See generally Black’s Law Dictionary (9th ed. 2009) (defining a
life estate as an “estate held only for the duration of a specified person’s life”). We

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acknowledge that Son may prove that he had a superior right to the property pursuant to other
doctrines, namely adverse possession. However, the court limited its holding to the
expiration of the statute of limitations.2 Accordingly, we reverse the trial court’s grant of the
motion for summary judgment because Mother’s claim to the property was not time-barred.
Upon remand, the court may consider the remaining issues raised in the motion for summary
judgment before deciding whether to proceed with a hearing on the merits of Mother’s
complaint.

                                          V. CONCLUSION

      The judgment of the trial court is reversed, and the case is remanded for further
proceedings consistent with this opinion. Costs of the appeal are taxed to the appellee,
Raymond G. Creekmore.


                                                   ______________________________________
                                                   JOHN W. McCLARTY, JUDGE




2
 Son raised a myriad of other issues on appeal that were not considered by the trial court in its limited grant
of the motion for summary judgment. We decline to address these issues. See Tenn. Code Ann. § 16-4-
108(a)(1) (providing that the jurisdiction of this court is “appellate only”).
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