                                                                                            05/10/2017




                   IN THE COURT OF APPEALS OF TENNESSEE
                                AT JACKSON
                                       April 4, 2017 Session1

FRANKLIN SQUARE TOWNE HOMEOWNERS ASSOCIATION INC., ET
              AL. v. JOSEPH B. KYLES, ET AL.

                     Appeal from the Chancery Court for Shelby County
                        No. CH-11-0838 Walter L. Evans, Judge
                         ___________________________________

                                No. W2016-02018-COA-R3-CV
                            ___________________________________

This case involves a dispute over property. The trial court ruled that the defendants’
driveway and air conditioner pads encroached onto the plaintiffs’ property but declined to
order their removal. Rather, the trial court awarded the plaintiffs damages and ruled that
the encroachments could remain in place. Both parties appealed. We affirm the trial
court’s conclusion that plaintiffs’ action with regard to the driveway is not barred by the
Tennessee Code Annotated section 28-2-103 statute of limitations. We reverse the trial
court’s ruling, however, to note that any action regarding the air conditioners and their
placement is barred by the section 28-2-103 statute of limitations. We also reverse the
trial court’s ruling allowing the driveway to remain in place.

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

J. STEVEN STAFFORD, P.J.,W.S., delivered the opinion of the court, in which BRANDON
O. GIBSON, J. and JEFFREY PARHAM, SP. J., joined.

Michael C. Patton and Kavita G. Shelat, Memphis, Tennessee, for the appellants,
Franklin Square Towne Homeowners Association, Inc., C. V. Scarborough, Jr., Natasha
N. Adams, Andy Steve Gilliam, and Janice A. Gilliam.

Edward M. Bearman and Gary E. Veazey, Memphis, Tennessee, for the appellees, Joseph
B. Kyles, and Ava A. Kyles.

                                               OPINION



       1
           Oral Argument in this case was heard at the University of Tennessee at Martin.
                                              Background

       This case involves the proper remedy for an encroaching driveway. On or about
June 24, 2010, Defendants/Appellees Joseph B. Kyles and Ava B. Kyles (“Appellees”)
began construction on a driveway to their residence on the eastern side. Appellees’
property abuts the property of the Franklin Square Towne Homeowners Association, Inc.
(“the Association”), which is the homeowner’s association of the townhomes neighboring
Appellees’ home. Owners of the neighboring townhomes, who were members of the
Association (collectively, “Property Owners”), observed the construction and therefore
reviewed documents to determine whether the construction was properly on Appellees’
property. After reviewing the documents, Property Owners informed Mr. Kyle on more
than one occasion of their belief that the driveway was being constructed on the
Association’s property. Mr. Kyle, however, rebuffed the Property Owners’ concerns and
continued with the construction of the driveway. During this time, letters were delivered
to both Appellees and their attorneys concerning the encroachment. Work on the
driveway continued after the delivery of the letters, however. The driveway was
completed on June 30 or July 1, 2010.
        On May 17, 2011, the Association and Property Owners C.V. Scarborough,
Natasha N. Adams, Steve Gilliam , and Janice A. Gilliam (together with the Association,
“Appellants”) filed suit against Appellees, seeking an injunction, the removal of the
offending driveway, compensatory damages, and punitive damages. Appellees answered
the complaint and raised the affirmative defense of adverse possession. Appellees also
filed a counter-claim for adverse possession. The parties participated in mediation, which
was unsuccessful.
        The trial court held a bench trial on December 7, 2015, and February 2, 2016. At
trial for the first time, Appellees conceded that a portion of their driveway and air
conditioning pads encroached onto the Association’s property. Accordingly, we will only
discuss the testimony that is relevant to this appeal.
       Property Owner Natasha Adams testified that she was the first among the Property
Owners to notice the construction of the driveway. After learning of the construction, she
and other Property Owners, Thomas Taylor2 and Steve Gilliam reviewed the plat for their
townhomes and determined that the driveway was encroaching onto the Association’s
property. According to Ms. Adams, the Property Owners confronted Mr. Kyle with the
plat and notified him that the driveway was encroaching onto the Association’s property.
Ms. Adams testified that Mr. Kyle responded that his documents indicated that he owned
the disputed area. Although Property Owners requested that Mr. Kyle stop construction,
construction continued unabated. As a result of the construction, Ms. Adams testified that
the construction crew excavated the area for a driveway pad, as well as cut down and
removed two mature crepe myrtles, two juniper bushes, three azalea bushes, and one

      2
          Mr. Taylor was deceased at the time of trial.
                                                   -2-
dogwood tree. Ms. Adams testified that she believed the value of her townhome had
decreased by approximately $10,000.00 to $12,000.00 due to the changes to the property.
Ms. Adams noted that other units had also been affected. Ms. Adams explained that she
reached the above figure by taking into account that loss of greenery and foliage and the
loss of seclusion.
       Other witnesses on behalf of Appellants likewise testified that they repeatedly
approached Mr. Kyle to inform him that the driveway was being constructed on the
Association’s property. According to these witnesses, however, Mr. Kyle refused to
suspend construction and requested that the parties’ attorneys handle the matter. Mr.
Gilliam further testified that his property was impacted by the encroachment in that
allowing the driveway to remain on his property “creates a serious issue” in the event that
he wishes to sell his property or to make improvements that might impact the utility lines
to Appellants’ properties that are under the driveway. Mr. Gilliam further testified that
the removal of the greenery resulted in a loss of privacy for Appellants, which could lead
to security issues.
       The surveyor who performed a survey in 2010, Larry Astin, testified regarding his
findings. According to the survey, a portion of the driveway, as well as the air conditioner
pads for Appellees’ home, encroached onto the Association’s property.3 At the
conclusion of Mr. Astin’s testimony, Appellees conceded that the driveway was
constructed partially on the Association’s property.
        Adam Cartwright, the co-owner of a landscaping and concrete business testified
that Appellants had asked him to prepare an estimate of the cost to remove the driveway
and replace the greenery in the disputed area. According to Mr. Cartwright, the estimate
included costs to excavate the driveway, for traffic control, to “haul off the concrete,” to
fill the area with soil, to brick out some areas as necessary, to replace the curb, to sod,
and to replace juniper bushes, crepe myrtles, azaleas, and a dogwood. According to Mr.
Cartwright, the estimated total cost of the project was $10,600.00. On cross-examination,
Mr. Cartwright admitted that his estimate would be lower if he used smaller shrubs. Mr.
Cartwright explained, however, that the shrubs had been removed by the time he
performed his estimate, so he determined the proper size “best [he could] tell” based on
the size and maturity of other plants in the neighborhood. Finally, Mr. Cartwright
explained that, in order to do the work for which he provided the estimate, his workers
“would need to be all over that driveway.” Indeed, Mr. Cartwright indicated that his
estimate involved removal of the entire driveway, rather than merely the encroaching
area, as the cost could “even go up potentially, having to cut the concrete. [In order to]
[r]emove only a portion without damaging the other portion, [it] might have to be taken
out by hand as opposed to with machinery, so that could make things much more


        3
           Throughout their brief, but particularly with regard to Mr. Astin’s testimony, Appellants rely on
the trial exhibits. The trial exhibits, however, are not included in the record on appeal.
                                                   -3-
complicated.” Mr. Cartwright noted, however, that he had not done the calculations for
removing only a portion of the driveway.
       At the close of Appellants’ proof, Appellees moved for dismissal on the basis of
the expiration of the statute of limitations under Tennessee Code Annotated section 28-2-
103. The trial court orally denied the motion. Mr. Kyle was the only witness to testify on
behalf of Appellees. Mr. Kyle conceded the accuracy of the survey but contended that he
had a good faith belief that he owned the property due to years of use of the property, the
location of his air conditioners at the time of his purchase of the property, and statements
from his realtor when he purchased the property in 2001. Mr. Kyle noted that the air
conditioners and their pads had been in the same place at the time of his purchase of the
property. According to Mr. Kyle, he and he alone had mowed and maintained the
greenery in the disputed area, at considerable expense. Mr. Kyle noted that he did not
reside in the home full-time until approximately six years after its purchase. Mr. Kyle
maintained, however, that his lawn service performed the only maintenance on that
portion of the property during this time.
       Mr. Kyle admitted that Property Owners had approached him multiple times
during the construction of the driveway with their concerns about the fact that the
driveway encroached on the Association’s property. According to Mr. Kyle, however, he
never suspended construction because he believed that the disputed area belonged to him.
Mr. Kyle also admitted that he first suggested that lawyers become involved in the
dispute. According to Mr. Kyle, this statement came after the discussion became heated
and because issues had previously arisen between his family and one Property Owner
over an unrelated matter.
       Mr. Kyle explained that the purpose of the driveway was to provide security and
convenience for his family. Mr. Kyle’s wife suffers from Sickle Cell Anemia and uses a
cane for support. According to Mr. Kyle, the new driveway was much closer to the front
door of the home, allowing his wife much easier access. Mr. Kyle admitted, however,
that another driveway was on the property that allowed access to his home.
       In rebuttal, Appellees called Reverend C.V. Scarborough, a Property Owner.
Reverend Scarborough testified that he purchased his townhome in 1987. At the time,
only one air conditioner was attached to the property later purchased by Appellees;
Reverend Scarborough, however, could not state when the second air conditioner was
added. According to Reverend Scarborough, both he and Mr. Gilliam mowed and
maintained the disputed areas over the years. Reverend Scarborough indicated that this
maintenance continued “in the last few years,” i.e., after Appellees’ purchase of the
neighboring property. Reverend Scarborough testified that he took care of the trees and
bushes “as much as they were taken care of,” tended to the juniper bushes, and mowed
back around Appellees’ air conditioners.



                                           -4-
       On August 29, 2016, the trial court entered an order containing findings of fact
and conclusions of law. The trial court first confirmed that a portion of the disputed
driveway was constructed on the Association’s property, conforming to the survey
introduced at trial. The trial court also rejected Appellees’ argument regarding the
expiration of the Tennessee Code Annotated section 28-2-103 statute of limitations as
“unpersuasive.” The trial court therefore ruled that Appellees’ encroachment onto the
Association’s property by way of both the driveway and concrete pads on which air
conditioning compressors sit constitute an intentional trespass.
       The trial court ruled that to allow Appellants to remove the driveway would entail
a “substantial” cost and “w[ould] diminish the value of both parcels of land to the extent
that the driveway encroachment shall remain.” The trial court found, however, that the
encroaching driveway did not diminish the use of Appellants’ properties. The trial court
therefore ruled that Appellees would pay $10,000.00 “for the encroachment,” while
receiving a perpetual easement for the encroachment to remain. Additionally, the trial
court awarded Appellants $5,000.00 in punitive damages for Appellees’ intentional
conduct. Both parties filed notices of appeal.
                                     Issues Presented
        Here, each party raises a single issue on appeal. Appellees argue that the trial court
should have dismissed this action based upon the expiration of the Tennessee Code
Annotated section 28-2-103 statute of limitations. In contrast, Appellants argue that the
trial court erred in granting Appellees a perpetual easement to allow the encroaching
driveway to remain on the Association’s property.
                                   Standard of Review
       In this appeal from a bench trial, we review the trial court’s findings of fact de
novo with a presumption of correctness, unless the evidence preponderates otherwise.
Tenn. R. App. P. 13(d). No presumption of correctness, however, attaches to the trial
court’s conclusions of law and our review is de novo. Blair v. Brownson, 197 S.W.3d
681, 684 (Tenn. 2006) (citing Bowden v. Ward, 27 S.W.3d 913, 916 (Tenn. 2000)). For
the evidence to preponderate against a trial court’s finding of fact, it must support another
finding of fact with greater convincing effect. 4215 Harding Road Homeowners Ass’n.
v. Harris, 354 S.W.3d 296, 305 (Tenn. Ct. App. 2011); Walker v. Sidney Gilreath &
Assocs., 40 S.W.3d 66, 71 (Tenn. Ct. App. 2000). Where the trial court does not make
findings of fact, there is no presumption of correctness, and we “must conduct our own
independent review of the record to determine where the preponderance of the evidence
lies.” Brooks v. Brooks, 992 S.W.2d 403, 405 (Tenn. 1999). Additionally, the trial
court’s findings on credibility, whether express or implicit, are entitled to great deference
on appeal. See Taylor v. McKinnie, No. W2007-01468-COA-R3-JV, 2008 WL 2971767,
at *4 (Tenn. Ct. App. Aug. 5, 2008). Where the trial court’s factual determinations are
based on its assessment of witness credibility, this Court will not reevaluate that

                                            -5-
assessment absent clear and convincing evidence to the contrary. Franklin Cnty. Bd. of
Educ. v. Crabtree, 337 S.W.3d 808, 811 (Tenn. Ct. App. 2010) (citing Jones v. Garrett,
92 S.W.3d 835, 838 (Tenn. 2002)).
                                                Analysis
                                                    I.
       We begin with Appellees’ argument that Appellants’ claim is barred by the seven-
year statute of limitations found at Tennessee Code Annotated section 28-2-103.4 Section
28-2-103 provides, in pertinent part: “No person or anyone claiming under such person
shall have any action, either at law or in equity, for the recovery of any lands, tenements
or hereditaments, but within seven (7) years after the right of action accrued.” Here,
Appellees argue that, after their purchase of the property in 2001, they exclusively used
and maintained the disputed area. Because the lawsuit at issue was not filed until 2011,
Appellees argue that it is untimely.
        The Tennessee Supreme Court discussed the section 28-2-103 statute of
limitations in Cumulus Broadcasting, Inc. v. Shim, 226 S.W.3d 366 (Tenn. 2007).
According to the supreme court:
        The limitations on actions statutes, described in Tennessee Code Annotated
        sections 28-2-102 and 103, are defensive only, barring only the remedy.
        Kittel v. Steger, 121 Tenn. 400, 117 S.W. 500, 503 (Tenn. 1909). These
        rights may be utilized by the adverse holder only in the defense of a suit
        and not as a means to bar use by the rightful owner. Savely v. Bridges, 57
        Tenn. App. 372, 418 S.W.2d 472, 479 (Tenn. Ct. App. 1967). . . . Section

        4
          Although not categorized as such by the parties, here, Appellees’ motion qualifies as a motion
for involuntary dismissal under Rule 41.02(2) of the Tennessee Rules of Civil Procedure. Rule 41.02(2)
provides:

                After the plaintiff, in an action tried by the court without a jury, has completed
        the presentation of plaintiff's evidence, the defendant, without waiving the right to offer
        evidence in the event the motion is not granted, may move for dismissal on the ground
        that upon the facts and the law the plaintiff has shown no right to relief. The court shall
        reserve ruling until all parties alleging fault against any other party have presented their
        respective proof-in-chief. The court as trier of the facts may then determine them and
        render judgment against the plaintiff or may decline to render any judgment until the
        close of all the evidence; in the event judgment is rendered at the close of plaintiff's
        evidence, the court shall make findings of fact if requested in writing within three (3)
        days after the announcement of the court's decision.

        Here, the trial court orally denied the motion and again addressed the argument in its final order
following the presentation of all proof. Accordingly, we will consider all of the proof presented in this
case in determining this issue, following the standard applicable in Rule 13(d) of the Tennessee Rules of
Appellate Procedure.
                                                   -6-
      28-2-103, which does not involve color of title, protects an adverse holder
      after a period of seven years but only as to that portion of the land in his
      actual possession. Shearer v. Vandergriff, 661 S.W.2d 680, 682 (Tenn.
      1983).
Cumulus Broad., 226 S.W.3d at 376 (footnote omitted). The possessor asserting a
defense under section 28-2-103 must therefore hold the property at issue “adversely.”
Shearer, 661 S.W.2d at 682 (citing Peoples v. Hagaman, 31 Tenn. App. 398, 215
S.W.2d 827 (Tenn. Ct. App. 1948)).
       Thus “[i]n order to establish adverse possession under this theory, or in any
statutorily based claim, the possession must have been exclusive, actual, adverse,
continuous, open, and notorious for the requisite period of time.” Cumulus Broad., 226
S.W.3d at 377 (emphasis added) (citing Hightower v. Pendergrass, 662 S.W.2d 932, 935
n. 2 (Tenn.1983)); see also Tenn. Stonehenge, Inc. v. Poteat, No. 01-A-01-9002-
CH00087, 1990 WL 125536, at *2 (Tenn. Ct. App. Aug. 31, 1990) (“To establish a
defense under Tenn. Code Ann. § 28-2-103 for the recovery of land, defendants’
possession must be actual, adverse, continuous, exclusive, open and notorious for the
entire period.”). Adverse possession is a question of fact. Cumulus Broad., 226 S.W.3d
at 377 (citing Wilson v. Price, 195 S.W.3d 661, 666 (Tenn. Ct. App. 2005)). The
individual claiming ownership by adverse possession has the burden of doing so by clear
and convincing proof. Cumulus Broad., 226 S.W.3d at 377 (citing O’Brien v.
Waggoner, 20 Tenn. App. 145, 96 S.W.2d 170, 176 (Tenn. Ct. App. 1936)). “The actual
owner must either have knowledge of the adverse possession, or the possession must be
so open and notorious to imply a knowledge of the adverse possession, or the possession
must be so open and notorious to imply a presumption of that fact.” Cumulus Broad.,
226 S.W.3d at 377 (citing Kirkman v. Brown, 93 Tenn. 476, 27 S.W.709, 710 (Tenn.
1894)).
       Here, Appellants assert that Appellees’ evidence regarding possession was
insufficient because it did not establish that Appellees had exclusive possession of the
disputed area for the statutory period. Appellants point to Mr. Kyle’s own statements that
he and his family did not live in the home full-time until approximately 2006, as well as
Reverend Scarborough’s testimony that he and another property owner maintained the
lawn and shrubbery in that area for years. Appellees do not dispute that they were
required to show exclusive possession of the property but instead argue that the proof
preponderates in favor of a finding that Appellees exercised exclusive dominion and
control over the disputed property.
       The record on appeal contains sharply disputed evidence regarding the
maintenance and use of the disputed property in the years prior to the dispute at issue in
this appeal. While Mr. Kyle vehemently denied that anyone other than his family or his
agents maintained the lawn and shrubbery in the disputed area after his purchase in 2001,
Mr. Kyle admitted that he was not present on the property full-time until 2006. In
                                          -7-
addition, Reverend Scarborough testified that he and another Property Owner continued
to mow the disputed area, including around Appellees’ air conditioner, and take care of
the shrubbery even after Appellees purchased the property.
       Because of the conflicting testimony on this issue, the trial court was necessarily
required to resolve this dispute on the basis of credibility. Although the trial court made
no express credibility findings, “[t]he trial court’s findings with respect to credibility and
weight of the evidence may generally be inferred from the manner in which the court
resolves conflicts in the testimony and decides the case.” Walker v. G.UB.MK
Constructors, No. E2015-00346-SC-R3-WC, 2016 WL 2343177, at *4 (Tenn. May 2,
2016) (citing Rhodes v. Capital City Ins. Co., 154 S.W.3d 43, 46 (Tenn. 2004)).
“[F]indings that are related to the issue of credibility will not be disturbed by this court,
absent other concrete evidence to the contrary which shows that the trial judge erred in
his judgment of the veracity of the witnesses.” Worth v. Cumberland Mountain Prop.
Owners Ass’n, Inc., No. 03A01-9709-CV-00442, 1999 WL 61629, at *4 (Tenn. Ct. App.
Feb. 10, 1999) (quoting Farmers & Merchants Bank v. Dyersburg Prod. Credit Ass’n,
728 S.W.2d 10, 18 (Tenn. Ct. App. 1986)). Where the trial court’s factual determinations
are based upon its assessment of witness credibility, we will only overturn the trial
court’s rulings if clear and convincing evidence to the contrary is shown. See Crabtree,
337 S.W.3d at 811. The Tennessee Supreme Court has described the “clear and
convincing” burden as follows:
        “Clear and convincing evidence means evidence in which there is no
       serious or substantial doubt about the correctness of the conclusions drawn
       from the evidence.” Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 n.3
       (Tenn. 1992). “In other words, the evidence must be such that the truth of
       the facts asserted [is] ‘highly probable.’” Goff v. Elmo Greer & Sons
       Constr. Co., 297 S.W.3d 175, 187 (Tenn. 2009) (quoting Teter v. Republic
       Parking Sys., Inc., 181 S.W.3d 330, 341 (Tenn. 2005)). In general, “the bar
       for attaining relief is set very high and the burden borne by the [Appellant]
       is heavy.” Johnson v. Johnson, 37 S.W.3d 892, 895 n.2 (Tenn. 2001).

Furlough v. Spherion Atl. Workforce, LLC, 397 S.W.3d 114, 128 (Tenn. 2013).

        Here, the trial court necessarily resolved any disputes regarding credibility in favor
of Appellants when it deemed Appellees’ arguments regarding the expiration of the
statute of limitations “unpersuasive.” Appellees point to no clear and convincing
evidence in the record sufficient to overturn the trial court’s implied credibility finding.
See Owens v. Tenn. Rural Health Improvement Ass’n, 213 S.W.3d 283, 288 (Tenn. Ct.
App. 2006) (refusing to overturn trial court’s credibility determinations when Appellants
“failed to point to clear and convincing evidence in the record . . . demonstrat[ing] that
the trial court erred” on the issue of witness credibility). Given Reverend Scarborough’s
testimony that he and other property owners mowed and maintained the disputed area in

                                            -8-
the years prior to the dispute, we cannot conclude that use of the disputed property during
the statutory period was exclusive to Appellees. See Albright v. Tallent, No. E2009-
01983-COA-R3-CV, 2010 WL 1905028, at *3 (Tenn. Ct. App. May 12, 2010) (holding
that no exclusive possession was proven by clear and convincing proof where both
parties testified that they mowed and landscaped the property during the requisite period).

        Moreover, because Mr. Kyle only lived at the subject property full-time since
approximately 2006, his testimony that no one else maintained the property from 2001
until 2006 is not clear and convincing; rather, it borders on speculation. Cf. Oliver v.
Quinby, No. W2000-02158-COA-R3-CV, 2001 WL 359241, at *3 (Tenn. Ct. App. Apr.
6, 2001) (“Pure speculation does not rise to the level of clear and convincing evidence.”);
see also State v. Land, 34 S.W.3d 516, 529 (Tenn. Crim. App. 2000) (noting that where a
witness’s testimony is not based on personal knowledge, it may constitute mere
speculation). Because the statutory period began to run in approximately 2003, even
assuming that Mr. Kyle maintained the property exclusively during his tenure as a full-
time resident of the property, as he claims, we cannot conclude that Appellees presented
clear and convincing proof of exclusive possession of the property upon which the
driveway encroaches from 2003 onward. We therefore affirm the trial court’s denial of
Appellees’ motion for involuntary dismissal due to the expiration of the statute of
limitations with regard to the encroachment created by the driveway.

       We note, however, that the evidence regarding the air conditioning units does
support a finding that they have been placed on the Association’s property for the
requisite seven years. First, we note that Ms. Adams testified that the air conditioning
units had been in the present location as early as 2004. In addition, Mr. Astin, the
surveyor, testified that at the time of the 2010 survey the air conditioner units were
present and appeared to have been “for quite some time.” Mr. Kyle also testified that the
air conditioners had been in place prior to his purchase of the home in 2001. Although
Reverend Scarborough testified that only one unit was initially placed for Appellees’
home, he could not testify as to when the second unit was added. Accordingly, while it
does appear that Reverend Scarborough and other property owners mowed the area
“around” the air conditioners, the actual property upon which the air conditioners are
actually placed appears to have been in “actual, adverse, continuous, exclusive, open and
notorious” use prior to 2003. Tenn. Stonehenge, 1990 WL 125536, at *2. The trial
court therefore erred in not dismissing Appellants’ claim regarding the property upon
which the air conditioners sat. The trial court’s ruling is therefore reversed to the extent
that the trial court ruled that the statute of limitations had not expired as to any claim
regarding the property upon which the air conditioners sit. Appellants therefore cannot
maintain an action to eject Appellees from their use of the Association’s property for
purposes of the air conditioning units.



                                           -9-
                                                   II.
        Appellants next assert that the trial court erred in granting Appellees a perpetual
easement for the use of the driveway. In support, Appellants note that the trial court
neither found nor does the evidence in the record support a finding of an express grant or
easement, a prescriptive easement, an easement by estoppel, an easement through
eminent domain, or an implied easement. Appellees generally do not argue that that the
trial court correctly imposed an easement above to allow them to continue use of the
disputed driveway.5 Instead, Appellees re-characterize the trial court’s ruling and argue
that the trial court did not abuse its discretion by refusing to grant Appellants an
injunction requiring that Appellees remove the encroachment. See State ex rel. Condon
v. Maloney, 108 Tenn. 82, 65 S.W. 871, 872 (Tenn. 1901) (applying the abuse of
discretion standard to the trial court’s decision to grant or deny a permanent injunction);
Medtronic, Inc. v. NuVasive, Inc., No. W2002-01642-COA-R3-CV, 2003 WL
21998480, at *10 (Tenn. Ct .App. Aug. 20, 2003) (“The standard of review respecting
injunctive relief is whether the trial court erred in exercising its discretion in the issuance
or nonissuance of the injunction.”).
        Appellants, however, disagree that the trial court’s ruling amounts to the grant of a
mandatory injunction. Instead, Appellants contend that they “only sought money
damages” in compensation for the encroachment, as well as the ability to remove the
encroachment themselves. The confusion regarding the relief sought in this case must, in
our view, lie with Appellants. Here, Appellants’ complaint clearly requested that the trial
court issue an injunction “directing [Appellees] to remove the encroaching portion of the
subject driveway.” Appellants assert that, despite this request, they “did not pursue that
relief at trial.” During opening arguments at the trial on this cause, however, counsel for
Appellants likewise stated that his clients “seek injunctive relief.” Regardless, Appellants
did present evidence that they had engaged Mr. Cartwright to provide an estimate of the
cost required to remove the offending driveway and replace the plants that had been
removed. As such, the confusion regarding Appellants’ requested relief is
understandable.
       Regardless of whether the trial court’s ruling is characterized as granting an
injunction, we conclude that it was not supported by the evidence at trial and therefore
constitutes an abuse of discretion. See Armbrister v. Armbrister, 414 S.W.3d 685, 693
(Tenn. 2013) (quoting Gonsewski v. Gonsewski, 350 S.W.3d 99, 105 (Tenn. 2011)) (“An

        5
          Appellees do argue, as an alternative argument, that the trial court’s ruling “falls within the
confines of an easement by necessity or a prescriptive easement as well.” Appellees cite law only with
regard to the easement by necessity. An easement by necessity, also known as an implied easement,
however, requires, inter alia, that the easement must be necessary for the enjoyment of the property. See
Cellco P’ship v. Shelby Cnty., 172 S.W.3d 574, 592 (Tenn. Ct. App. 2005). Although strict necessity is
not required, no necessity has been shown in this case, as it is undisputed that Appellees’ property has
another useable driveway. This Court will not tax the length of this Opinion by discussing the other types
of easements that the trial court could have been referring to in this case.
                                                 - 10 -
 abuse of discretion occurs when the trial court . . . appl[ies] an incorrect legal standard,
reaches an illogical result, resolves the case on a clearly erroneous assessment of the
evidence, or relies on reasoning that causes an injustice.”) (emphasis added). Here,
Appellees assert that the trial court followed the precedent set forth in Morrison v. Jones,
58 Tenn. App. 333, 430 S.W.2d 668 (Tenn. Ct. App. 1968), in allowing the offending
driveway to remain. In Morrison, the parties disputed the ownership of a piece of
property upon which the defendants had constructed a building. The trial court ruled that
the defendant had willfully and intentionally encroached upon the plaintiffs’ property. Id.
at 339. The trial court therefore issued a mandatory injunction directing defendants to
remove the encroachment. Id.
      The Tennessee Court of Appeals affirmed the trial court’s ruling that the
defendants had encroached on the plaintiffs’ property. The Court of Appeals was more
concerned, however, with the trial court’s decision to issue an injunction requiring the
encroachment’s removal. As the Court explained:
              The most serious and difficult question which confronts us is that
       which is raised under the third assignment in which the defendants
       challenge the basis of the Chancellor's decision to grant a mandatory
       injunction.
              It is the general rule that the equitable remedy of injunction is not a
       matter of right, but is exercised only in the sound discretion of the
       Chancellor. . . .
              It is also the general rule that a mandatory injunction will not be
       granted except in extreme cases and when courts of law are unable to afford
       adequate redress, or when the injuries complained of cannot be
       compensated in damages. . . .

Id. at 342 (citations omitted). Based upon these rules, the Court of Appeals ultimately
concluded that the issuance of a mandatory injunction was unjust and that monetary
damages were more appropriate.
        The rule adopted in Morrison has only been followed a handful of times by this
Court. See generally Cross v. McCurry, 859 S.W.2d 349, 354 (Tenn. Ct. App. 1993)
(affirming the trial court’s denial of an injunction requiring removal of an encroachment);
Smith v. Rodgers, 677 S.W.2d 1, 4 (Tenn. Ct. App. 1984) (reversing the trial court’s
grant of an injunction directing defendants to remove an encroachment); Package Exp.
Ctr., Inc. v. Maund, No. E2000-02059-COA-R3-CV, 2001 WL 579051, at *4 (Tenn. Ct.
App. May 30, 2001) (reversing the trial court’s grant of an injunction because “[t]he right
to an injunction was not asserted within a reasonable time”). Accordingly, it appears that
its result is based on the unique facts at issue. The facts in Morrison, however, are not
analogous to the facts in this case. In the first instance, the plaintiffs in Morrison waited
until the construction of the building was complete to complain of the encroachment.
Indeed, nothing in the opinion indicates that the plaintiffs voiced any concern over the
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encroachment until after the construction was completed. Accordingly, the defendants
had no opportunity to remedy the issue prior to the completion of their building. Other
courts applying the rule from Morrison likewise noted that the plaintiffs did not protest
the encroachment at the time it was constructed. See Cross, 859 S.W.2d 354 (noting that
the plaintiff did not voice any protest until six years after the construction); Smith v, 677
S.W.2d at 4 (noting that “a considerable length of time elapsed between the
encroachment and the filing of this action”). Indeed, this Court characterized the
plaintiffs’ actions in Morrison as having “more or less lulled the encroachers into making
substantial improvements.” Tindell v. West, No. E2011-01744-COA-R3-CV, 2012 WL
1525035, at *5 (Tenn. Ct. App. Apr. 30, 2012) (declining to reverse the trial court’s
ruling that the encroachment be removed where the plaintiff acted promptly in informing
the defendant of the encroachment).
       The same delay is simply not present in the case-at-bar. Here, Appellants testified
that they immediately informed Mr. Kyle of their belief that the driveway was
encroaching onto the Association’s property. Mr. Kyle, however, chose not to suspend
construction but to carry on despite notice that the driveway was not on his property.
Indeed, it was these facts that led to the trial court’s decision to characterize Appellees’
actions as willful and to award punitive damages.6 Because Appellants were not aware of
Mr. Kyle’s intention to construct the driveway before construction began, we cannot
discern how Appellants could have notified Appellees of their concerns regarding the
encroachment at any earlier time.
        Moreover, the decision to reverse the grant of a mandatory injunction in Morrison
related to the “undue hardship upon the defendants and result in little, if any, benefit to
the [plaintiffs]” where “any other adequate means of redress is available.” Morrison, 430
S.W.2d at 677. Specifically, the Court of Appeals quoted the trial court’s finding that
there was an “imbalance between the expense to [defendants] and the benefit to [the
plaintiffs] of removal.” Id. Appellees argue that the same was found by the trial court in
this case, which ruled that removal of the encroaching driveway would “diminish the
value of both parcels of land” and indicated that that the removal would also require a
“substantial” cost. Respectfully, we cannot agree that the evidence in the record supports
the trial court’s conclusion on this issue.
        Here, the parties presented minimal evidence regarding the diminution of value to
Appellants’ properties. Indeed, only Ms. Adams testified as to this issue, stating her
belief that her property had been devalued by approximately $10,000.00 to $12,000.00.
Ms. Adams based her testimony on the loss of greenery and privacy to Appellants’
properties. Ms. Adams noted that her estimate was based only on the decrease in value to
her property. No expert proof was presented on this issue. Likewise, no evidence was
presented to rebut Ms. Adams’s estimation as to the value lost to her property. Although

       6
          The trial court’s finding that Appellees’ action was willful and therefore a proper basis for
punitive damages has not been appealed.
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the trial court found that the encroaching driveway did not diminish Appellants’ “use of
the property,” it did not make an express finding regarding whether the value of the
property was reduced by the encroachment.
       The cost to remove the encroaching driveway, however, was largely undisputed:
Mr. Cartwright testified that the cost to remove the driveway and replant trees, shrubbery,
and sod was approximately $10,600.00. Although Appellees suggested that Mr.
Cartwright’s estimate could be lowered by using smaller shrubbery, there was no genuine
dispute as to the accuracy of Mr. Cartwright’s estimate. From our review of Mr.
Cartwright’s estimate, the work appears to involve both removal of the encroaching
driveway and replanting of grass and shrubbery to return the disputed area to the status
quo that existed prior to the construction of the driveway.7
        Based on the only figures presented at trial, it does not appear that the cost to
remove the encroaching driveway will cause an undue hardship without a corresponding
benefit. Here, the trial court awarded Appellants $10,000.00 in damages, the approximate
cost to perform the work to return the disputed area to the status quo. This figure is nearly
identical to the only evidence in the record concerning the loss of value to Appellants’
properties due to the encroachment. As such, the benefit to Appellants, the return of the
value of their property, is in no way out of proportion to the expense needed to return the
property to the status quo.
        Finally, we note that, although Mr. Kyle testified that the encroaching driveway
allowed additional security and convenience for his wife, who walks with a cane, there is
no evidence in the record that the value of Appellees’ property would be substantially
diminished by returning the property to its condition prior to Appellees’ encroachment. In
fact, Appellees presented no proof even as to the cost of installing the driveway.8 Indeed,
common sense dictates that the burden of tearing down an entire building that has already
been completed due to a relatively minor encroachment is substantially greater than the
burden of removing a driveway. As such, we cannot conclude that the situation presented
in this case is analogous to the facts in Morrison.9




        7
           It appears that the estimate includes work to both the Association’s property and Appellees’
property, as Mr. Cartwright testified that the cost would be even greater to only remove that portion of the
driveway that encroaches on the Association’s property.
        8
          Mr. Kyle discussed in his testimony the costs of other maintenance to the property but did not
specifically provide a figure for the cost of installing the driveway.
        9
          In addition, the Court in Morrison also noted that there was a genuine dispute over the proper
boundary line. See Morrison, 430 S.W.2d at 674; see also Ass’n of Owners of Regency Park
Condominiums v. Thomasson, 878 S.W.2d 560, 564 (Tenn. Ct. App. 1994) (“This court also denied a
mandatory injunction in [Morrison] because the court found there was a genuine dispute as to the location
of a boundary line and damages afforded an adequate remedy.”). There is no such dispute in this case, as
Appellees conceded at trial that the driveway encroached onto the Association’s property.
                                                  - 13 -
       Here, the trial court based its ruling that the encroachment could remain on its
findings that the cost to remove the encroachment would be substantial and that removal
would unduly burden both parcels. Based on the foregoing, we conclude that the
evidence preponderates against the trial court’s finding that removal of the encroaching
driveway would undermine the value of both parcels. As such, we cannot agree that this
case presented the appropriate situation for allowing the encroachment to remain as was
recognized by this Court in Morrison. The trial court’s decision to allow the
encroachment to remain is therefore reversed. Appellants are therefore entitled to remove
the encroaching driveway in an expedient and reasonable manner taking into account all
parties.
                                      Conclusion
       The judgment of the Shelby County Chancery Court is affirmed in part and
reversed in part. Costs of this appeal are taxed one-half to Appellants, Franklin Square
Towne Homeowners Association, Inc., C.V. Scarborough, Natasha N. Adams, Steve
Gilliam, and Janice A. Gilliam, and their surety, and one-half to Appellees, Joseph B.
Kyles and Ava B. Kyles, for all of which execution may issue if necessary.



                                                  _________________________________
                                                  J. STEVEN STAFFORD, JUDGE




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