                IN THE COURT OF APPEALS OF TENNESSEE
                           AT KNOXVILLE
                                January 15, 2015 Session


     RITA MCCARTT KORDON, ET AL. v. BEULAH NEWPORT, ET AL.


                  Appeal from the Chancery Court for Scott County
                     No. 9765     Andrew Tillman, Chancellor


                No. E2013-01980-COA-R3-CV-FILED-APRIL 24, 2015


Rita McCartt Kordon and Rose McCartt Young appeal the decision of the Chancery Court
for Scott County (“the Trial Court”) dismissing their claims for failure to prosecute pursuant
to Tenn. R. Civ. P. 41.02(1). We find no abuse of discretion in the Trial Court’s dismissal
of Ms. Kordon’s and Ms. Young’s claims, and we affirm.

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


D. M ICHAEL S WINEY, J., delivered the opinion of the Court, in which C HARLES D. S USANO,
J R., C.J., and T HOMAS R. F RIERSON, II, J., joined.

Rita McCartt Kordon and Rose McCartt Young, Robbins, Tennessee, pro se appellants.

Kevin C. Stevens and Briton S. Collins, Knoxville, Tennessee, for the appellees, Beulah
Newport, Edith Joyce Bailey, Wilma Faye Hensley, Earl Herman Moore, Violet Ruth
Simpson, and Kenneth Byrd.
                                                 OPINION

                                                Background

               In September of 2007 Rita McCartt Kordon and Frank McCartt (“Plaintiffs”)1
sued Beulah Newport, Edith Joyce Bailey, Wilma Faye Hensley, Earl Herman Moore, Violet
Ruth Simpson, Kenneth Byrd, and Leon Byrd2 (“Defendants”) alleging, in part, that
Defendants had created a cloud on title to real property located in Scott County, Tennessee
allegedly owned by Plaintiffs. Plaintiffs and Defendants own real property located in Scott
County, Tennessee that shares a common boundary line. Plaintiffs’ complaint stated, among
other things, that the boundary line at issue had been set in the case of General Byrd v. Wilma
McCartt Woodby (“Byrd v. Woodby”), wherein in 1977 this Court affirmed the 1975
judgment of the Chancery Court of Scott County as to the boundary line, and alleged that
Defendants had recorded a survey in April of 2007 (“the Egerton Survey”) that “encroaches
upon the land owned by the Plaintiffs . . . .” Plaintiffs also alleged that “after the Order was
entered in 1975 the Plaintiffs and their family have utilized all the property as previously
claimed in the Chancery Court action 4400 in an open and notorious manner.”

               Defendants answered the complaint and alleged that the Egerton Survey
“accurately reflects the subject boundary previously established in [Byrd v. Woodby].”
Defendants also filed a counterclaim alleging, in part, that Plaintiffs had filed a survey (“the
Crutchfield Survey”) that improperly depicted the boundary established in Byrd v. Woodby.
Defendants sought a declaration that the Egerton Survey correctly depicted the boundary
established in Byrd v. Woodby and an order requiring removal of the Crutchfield Survey from
the public record.

               Defendants filed a motion for partial summary judgment. Plaintiffs responded
to the motion for partial summary judgment alleging, in part, that although the boundary line


        1
         The record on appeal contains a motion filed by Rose McCartt Young and a motion filed by Ruth
McCartt Johnson both seeking to be allowed to join the suit as party plaintiffs. In these motions Ms. Young
and Ms. Johnson state that they are siblings of plaintiffs Rita McCartt Kordon and Frank McCartt and heirs
of L.C. McCartt. The record on appeal does not contain any orders allowing Ms. Johnson or Ms. Young to
join the suit. The record reveals, however, that Ms. Kordon and Ms. Young each filed an appeal of the
judgment of the Trial Court. The record on appeal also contains a suggestion of death stating that Frank
McCartt died during the pendency of the suit.
        2
          The record on appeal contains a suggestion of death stating that Leon Byrd died during the pendency
of this suit. The suggestion of death states that Leon Byrd died with legal heirs and alleges that “[t]hese heirs
would be necessary parties in order to fully litigate this matter.” Nothing appears in the record on appeal
showing whether or not the heirs of Leon Byrd ever were served with process.

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was established by Byrd v. Woodby, it “was never properly set by the Court or a surveyor,”
and that Plaintiffs “have been in open notorious control of the real property for over thirty
years,” and “have paid taxes on the area of real property in conflict for more than thirty
years.” After a hearing on the motion for partial summary judgment the Trial Court entered
its order on July 28, 2011 finding and holding:

              1. The Court shall conduct the trial in this case on the sole issue of
       Plaintiffs’ request for a declaratory judgment to strictly enforce and confirm
       the precise location of the boundary line between the adjoining real properties
       owned by the respective parties hereto that was conclusively established by the
       Final Decree of this Court in Case no. 4400 dated October 10, 1975, which
       was affirmed by the Tennessee Court of Appeals, Eastern Section on March
       11, 1977. Byrd v. Woodby et al., Scott County, Tennessee Chancery Court
       Case No. 4400 (Oct. 10, 1975), aff’d Tenn. Ct. App. (Mar. 11, 1977).
              2. Plaintiffs’ former counsel, Johnny V. Dunaway, previously sent
       correspondence to Defendants’ former counsel, Timothy P. Webb, dated
       March 3, 2000 (the “Dunaway Correspondence”) . . . wherein Mr. Dunaway
       expressly stated to Mr. Webb that “My clients [Plaintiffs] are not now claiming
       the 7 acres, although they originally thought they owned it and had requested
       Crutchfield to perform a survey of the 7 acres.”
              3. Based upon the express statements of Mr. Dunaway in the Dunaway
       Correspondence, Plaintiffs shall not be allowed to assert a claim in this case
       for adverse possession of the subject 7 acres unless they can introduce
       documentary evidence that Mr. Dunaway expressly retracted his statement in
       the Dunaway Correspondence, which conveyed to Defendants that his clients
       were not claiming the subject 7 acres, by sending written notice to Mr. Webb
       of his retraction within a reasonable time after making such statement. If
       Plaintiffs do not introduce such documentary evidence on or before August 13,
       2011, then Plaintiffs’ claim for adverse possession and any additional claims
       asserted by Plaintiffs, other that [sic] their claim for declaratory judgment,
       shall be dismissed.

             On July 3, 2013 Defendants filed a motion for entry of a final judgment
alleging, among other things, that Plaintiffs’ suit should be dismissed for failure to prosecute
pursuant to Tenn. R. Civ. P. 41.02. After a hearing, the Trial Court entered its order on
August 2, 2013 finding and holding, inter alia:

              This cause came before the Court on July 19, 2013, upon the Motion for
       Entry of Judgment Order submitted by [Defendants]. Having considered said
       Motion, the arguments of counsel, the arguments of [Plaintiffs] upon their

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discharge of their counsel in open Court, and a review and certification of the
entire Court record pursuant to Tenn. R. Civ. P. 63, the Court finds that the
Defendants’ Motion is well-taken and that a final Judgment should be and is
hereby entered against the Plaintiffs and in favor of the Defendants. In
entering this Final Judgment Order, the Court finds the pertinent facts as
follows:
       1. The Plaintiffs are the current owners of that certain real property
located in Scott County, Tennessee, being described in Deed Book 72, Page
561 at [sic] seq. in the office of the Register of Deeds for Scott County,
Tennessee (the “Plaintiffs’ Property”).
       2. The Defendants are the current owners of that certain real property
located in Scott County, Tennessee, being described in Deed Book 224, Page
228 et seq. in the office of the Register of Deeds for Scott County, Tennessee
(the “Defendants’ Property[”]).
       3. The Plaintiffs’ Property and the Defendants’ Property are adjoining
real properties that share a common boundary line.
       4. The Plaintiffs filed their Complaint in this case on September 20,
2007, wherein they asserted a claim for adverse possession against the
Defendants seeking to recover ownership of approximately seven (7) acres of
real property located in the vicinity of the common boundary line between the
Plaintiffs’ Property and the Defendants’ Property.
       5. The common boundary line between the Plaintiffs’ Property and the
Defendants’ Property was previously established in the Final Decree of this
Court in Case No. 4400 dated October 10, 1975 (the “Final Decree”), which
was affirmed by the Tennessee Court of Appeals, Eastern Section on March
11, 1977 (the “Appellate Opinion”). Byrd v. Woodby et al., Scott County,
Tennessee Chancery Court Case No. 4400 (Oct. 10, 1975), aff’d Tenn. Ct.
App. (Mar. 11, 1977). . . .
       6. The Final Decree expressly defined the boundary line between the
Plaintiffs’ Property and the Defendants’ Property as “the pasture fence running
from the 25 inch pine tree generally southwardly to the Railroad right-of-way”
(the “Pasture Fence Boundary”).
       7. On February 14, 2011, the Defendants filed a Motion for Partial
Summary Judgment seeking to dismiss the Plaintiffs’ claims for adverse
possession on the grounds of collateral estoppel, arguing that the location of
the Pasture Fence Boundary line was previously established by this Court in
the Final Decree following a trial on the merits and later affirmed by the
Tennessee Court of Appeals in the Appellate Opinion. The Defendants moved
the Court to enforce the prior Final Decree and Appellate Opinion establishing



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the location of the Pasture Fence Boundary line between the Plaintiffs’
Property and the Defendants’ Property.
        8. On July 28, 2011, this Court entered an Order granting the
Defendants’ Motion for Partial Summary Judgment, dismissing the Plaintiffs’
claim for adverse possession and enforcing the prior Final Decree of this Court
establishing the location of the Pasture Fence Boundary line between the
Plaintiffs’ Property and the Defendants’ Property. Because Plaintiffs’ claim
for adverse possession was the sole claim for affirmative relief sought by
Plaintiffs in this case, this Court’s dismissal of such claim on the merits
exhausted Plaintiffs’ right to affirmative relief against the Defendants.
        9. Following this Court’s entry of the Order granting the Defendants’
Motion for Partial Summary Judgment on July 28, 2011, the Plaintiffs have
taken no action whatsoever in this case for nearly two (2) years, other than
appearing in open Court on July 19, 2013 for purposes of defending against the
Defendants’ Motion for Entry of Judgment Order. At that time, the Plaintiffs
discharged their counsel in open Court during the hearing and elected to
proceed with argument of the Motion pro se.
        10. This Court, acknowledging that it is proceeding with this case
following the death of Chancellor Billy Joe White, certifies pursuant to Tenn.
R. Civ. P. 63 that it has reviewed the entire record in this case, is familiar with
said record, and that the proceedings in this case may be completed without
prejudice to the parties.
        11. Upon consideration of the arguments Plaintiffs made in open Court
on July 19, 2013, and the entire record in this case, this Court sees no basis
upon which to set aside the prior Order granting the Defendants’ Motion for
Partial Summary Judgment.
        12. This Court finds that it is appropriate to enforce the prior Final
Decree of this Court and Appellate Opinion establishing the location of the
Pasture Fence Boundary line between the Plaintiffs’ Property and the
Defendants’ Property.
        13. This Court finds that the Defendants have submitted sufficient
proof in the record to demonstrate that the Pasture Fence Boundary line
between the Plaintiffs’ Property and the Defendants’ Property that was
established in the Final Decree and affirmed in the Appellate Opinion is
properly depicted on the survey prepared by Hardin Egerton dated March 7,
2007 and recorded with the Scott County, Tennessee Register of Deeds on
April 30, 2007 at Plat Cabinet C, Slide 194 (the “Egerton Survey”). . . .
        14. This Court finds that the Plaintiffs have failed to offer sufficient
evidence to refute the Defendants’ substantial proof that the Egerton Survey
properly depicts the Pasture Fence Boundary line between the Plaintiffs’

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       Property and the Defendants’ Property, which was established in the Final
       Decree and affirmed in the Appellate Opinion.
              15. This Court finds that, to the extent Plaintiffs continued to possess
       any claims against the Defendants following this Court’s entry of the Order
       granting the Defendants’ Motion for Partial Summary Judgment on July 28,
       2011, the Plaintiffs have failed to prosecute any such claims given that the
       Plaintiffs have taken no action whatsoever in this case other than appearing in
       open Court on July 19, 2013 for purposes of arguing against the Defendants’
       Motion for Entry of Judgment Order, at which time the Plaintiffs discharged
       their own counsel in open Court.
              16. Finally, this Court finds that the Plaintiffs have recorded a survey
       prepared by Crutchfield Surveys with the Scott County, Tennessee Register of
       Deeds on June 29, 2005 at Plat Cabinet C, Slide 147 (the “Crutchfield
       Survey”), which improperly depicted the Pasture Fence Boundary line between
       the Plaintiffs’ Property and the Defendants’ Property that was established in
       the Final Decree and affirmed in the Appellate Opinion. The Crutchfield
       Survey was not based upon any field evidence. The Crutchfield Survey has
       created an impermissible cloud on the title of the Defendants’ Property and
       should be declared null and void and permanently removed from the records
       of the Scott County, Tennessee Register of Deeds.
              Based upon the foregoing facts, it is hereby:
              ORDERED, ADJUDGED and DECREED that the Defendants’
       Motion for Entry of Judgment Order is granted in full. It is further
              ORDERED, ADJUDGED and DECREED that any claims the
       Plaintiffs may have continued to possess against the Defendants following this
       Court’s entry of the Order granting the Defendants’ Motion for Partial
       Summary Judgment on July 28, 2011 are dismissed for Plaintiff’s [sic] failure
       to prosecute pursuant to Tenn. R. Civ. P. 41.02(1), with such dismissal
       operating as an adjudication upon the merits.

Plaintiffs appeal to this Court.

                                        Discussion

              The dispositive issue in this appeal is whether the Trial Court erred in
dismissing Plaintiffs’ claims pursuant to Tenn. R. Civ. P. 41.02 for failure to prosecute. In
Hodges v. Tennessee Attorney General this Court noted:

             Trial courts possess inherent, common-law authority to control their
       dockets and the proceedings in their courts. Their authority is quite broad and

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       includes the express authority to dismiss cases for failure to prosecute or to
       comply with the Tennessee Rules of Civil Procedure or the orders of the court.
       Tenn. R. Civ. P. 37.02(C); Tenn. R. Civ. P. 41.02(1); Kotil v. Hydra–Sports,
       Inc., No. 01A01–9305–CV–00200, 1994 WL 535542, at *3 (Tenn. Ct. App.
       Oct. 5, 1994) (No Tenn. R. App. P. 11 application filed). Because decisions
       to dismiss for failure to prosecute are discretionary, White v. College Motors,
       212 Tenn. 384, 386, 370 S.W.2d 476, 477 (1963), reviewing courts will
       second-guess a trial court only when it has acted unreasonably, arbitrarily, or
       unconscionably. Friedman v. Belisomo, No. 02A01–9304–CH–00094, 1993
       WL 498504, at *3 (Tenn. Ct. App. Dec. 1, 1993) (No Tenn. R. App. 11
       application filed).

Hodges v. Tennessee Attorney General, 43 S.W.3d 918, 921 (Tenn. Ct. App. 2000).

               In the case now before us the Trial Court found that Plaintiffs had taken no
action whatsoever to prosecute their action following the Trial Court’s entry of the order
granting Defendants’ motion for partial summary judgment on July 28, 2011 until almost two
years later on July 19, 2013 when Plaintiffs appeared in court to argue against Defendants’
motion for entry of a judgment. Furthermore, the Trial Court found that “Plaintiffs’ claim
for adverse possession was the sole claim for affirmative relief sought by Plaintiffs in this
case,” and, therefore, “this Court’s dismissal of such claim on the merits [in the July 28, 2011
order granting partial summary judgment] exhausted Plaintiffs’ right to affirmative relief
against the Defendants.” Given these facts and the record before us, we find no abuse of
discretion in the Trial Court’s dismissal of Plaintiffs’ claims for failure to prosecute pursuant
to Tenn. R. Civ. P. 41.02(1).

                                          Conclusion

              The judgment of the Trial Court is affirmed, and this cause is remanded to the
Trial Court for collection of the costs below. The costs on appeal are assessed against the
appellants Rita McCartt Kordon and Rose McCartt Young and their surety.




                                                     _________________________________
                                                     D. MICHAEL SWINEY, JUDGE




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