Burnette v. Pickel

858 S.W.2d 319, 1993 Tenn. App. LEXIS 15
CourtCourt of Appeals of Tennessee
DecidedJanuary 4, 1993
StatusPublished
Cited by2 cases

This text of 858 S.W.2d 319 (Burnette v. Pickel) is published on Counsel Stack Legal Research, covering Court of Appeals of Tennessee primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Burnette v. Pickel, 858 S.W.2d 319, 1993 Tenn. App. LEXIS 15 (Tenn. Ct. App. 1993).

Opinions

[320]*320OPINION

LEWIS, Judge.

Plaintiffs have appealed from an adverse judgment rendered by the trial court. Plaintiffs had originally filed a tort action in the Circuit Court for Roane County and alleged that defendants had trespassed upon and destroyed property belonging to plaintiffs. Plaintiffs admitted in their complaint that the land in dispute was not in plaintiffs’ deed, but plaintiffs claimed ownership through adverse possession. Defendants filed a third-party complaint against their grantor, third-party defendant, Roma Burnette. The Circuit Court determined that a boundary line dispute must be resolved initially and bifurcated the case by sending the boundary line issue to the Chancery Court for a determination of what portion of the disputed tract each of the parties owned. The Chancellor found for defendants and declared their right to the disputed land. All other issues were reserved to the Circuit Court. This appeal involves the findings of the Chancellor that plaintiffs did not have a valid claim to the real estate at issue.

The facts out of which this case arose are as follows:

In 1935, Tom and Martha Burnette (husband and wife) acquired a tract of land in the Kingston area. They lived on the land for the remainder of their lives. In 1946, Howard1 and Paul, sons of Tom and Martha Burnette, were living with their parents at the family home. Paul married Pauline and Howard married Roma. Martha Burnette2 decided to and did deed a portion of the land to Paul and Pauline so they might build a marital residence. At the same time, she also deeded the remainder of the land to Howard and Roma, but reserved a life estate for herself and Tom Burnette. Howard and Roma continued to live with Tom and Martha until the death of the elder Burnettes. Howard died in 1972 and Roma lived in the home until she became ill. Thereafter, Roma lived in the home off and on until 25 March 1988, when she sold the property to defendants.

A dispute arose between plaintiffs and defendants regarding the location of the boundary line of the property of each. Plaintiffs alleged that two parcels the defendants claimed to have purchased from Roma were actually part of the land deeded to plaintiffs by Martha Burnette in 1946. At issue is a more or less rectangular plot between the undisputed parcels and a triangular area behind the home of Paul and Pauline. The plaintiffs alleged that Martha had walked the property with them in 1946 to identify what land was being deeded and had also given them a survey purporting to show the land being transferred. Evidently the survey and deed description did not match in regard to the property being given to Paul and Pauline.

During a survey conducted for the sale from Roma Burnette to the defendants, it came to the attention of Paul that part of what he considered his property3 was in the deed to Howard and Roma. Paul challenged the surveyor and claimed to be in possession of the disputed property.

The defendants proceeded with the purchase in spite of the controversy, and after the sale was closed, razed an old garage built many years prior by Paul. They also installed a fence along what they considered to be their property line.

Plaintiffs then filed this suit in an attempt to have the disputed land declared [321]*321theirs. They also alleged that the defendants were guilty of trespass, destruction of real property, coercion, deliberate infliction of mental and emotional distress, and outrageous conduct. Plaintiffs sought both compensatory and punitive damages.

Plaintiffs filed this suit in the Circuit Court on 20 June 1988. Defendants answered the complaint and filed a third-party complaint against the seller of the property, Roma Burnette. On 29 January 1989, Roma filed a motion to dismiss the third-party complaint which was later denied. Roma died on 12 July 1989 and the administratrix of her estate was substituted for the decedent as the third-party defendant. A motion was then made to dismiss the third-party defendant because there had been no revival of the action against Roma’s estate within the time required by law. It was further contended that the court no longer had subject matter jurisdiction. This motion was also denied. The Circuit Court ordered a bifurcated proceeding and transferred the boundary line dispute to Chancery Court. The Chancellor denied the plaintiffs motion for summary judgment and then recused himself due to conflicts of interest. A substitute judge heard the case and ruled in favor of defendants. Final judgment was entered and plaintiffs appealed.

At trial, the evidence showed that Paul, in fact, knew the rectangular property actually belonged to Howard and Roma but that he had been told by his mother Martha before her death that he could use the driveway area so long as he lived on his property. Paul alleges that Howard promised to deed the strip of land to him eventually, but admitted that Roma had not been involved in the discussion. Defendants point out that even if Howard did make such a statement, it would have no binding effect, since the property was titled in the name of Howard and Roma as tenants by the entirety.

Plaintiffs claim title to the triangular area behind the house by virtue of the deed from Tom and Martha. However, if the deed does not include the triangular area, they claim ownership by adverse possession. They have supposedly planted trees, flowers, etc. on the property for many years and had continuous possession. However, the defendants countered the adverse possession claim by arguing that the plaintiffs did not control the property to the exclusion of Howard and Roma Bur-nette and, therefore, did not have adverse and exclusive use of the land.

Plaintiffs’ first issue is: “Was it proper for the learned Circuit Judge, acting sua sponte, to order that the case be bifurcated, and that there be a trial in the Chancery Court as a boundary line dispute, while retaining the tort claims in the Circuit Court?”

The order bifurcating this case was entered by the Circuit Judge. So far as the record shows, no objection was made to the bifurcation. If the plaintiffs-appellants objected to the bifurcation, they could have done so in the trial court and, if overruled, they could have sought a discretionary appeal pursuant to Tennessee Rule of Appellate Procedure 9 prior to going to trial in the Chancery Court on the boundary line issue.

Tennessee Code Annotated, Section 16-11-106, provides in pertinent part that “[t]he chancery court has jurisdiction to hear and determine all cases in which the boundary line or lines of adjoining or contiguous tracts of land is one [of] the questions] at issue....”

In this instance, the Circuit Judge correctly determined that an action for damages for trespass would require the ascertainment of whether the plaintiffs owned the land on which the damages were claimed to have been done.

If it be considered error for the Circuit Judge to have bifurcated the issues in this case and referred the boundary line issue to the Chancery Court, we are unable to consider such an issue. Rules of the Court of Appeals, Rule 6(a) 2, provides that the appellant must show in his written argument before the court “how such alleged error was seasonably called to the attention of the trial judge with citation to that part of the record where appellant’s challenge of the alleged error is recorded.”

[322]

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858 S.W.2d 319, 1993 Tenn. App. LEXIS 15, Counsel Stack Legal Research, https://law.counselstack.com/opinion/burnette-v-pickel-tennctapp-1993.