IN THE COURT OF APPEALS OF TENNESSEE
FILED
October 19, 1999
Cecil Crowson, Jr.
Appellate Court Clerk
AT JACKSON
______________________________________________
EUGENE BROOKS and
VERDELLE BROOKS,
Husband and Wife,
Plaintiffs-Appellants,
Hardeman Chancery No. 9980
vs. C.A. No. 02A01-9903-CH-00066
T. R. LAMBERT, SR. and VADIE
LAMBERT, Husband and wife,
and TIM LAMBERT and
GLENDA LAMBERT, Husband
and Wife,
Defendants-Appellees.
______________________________________________________________________
______
FROM THE HARDEMAN COUNTY CHANCERY COURT
THE HONORABLE DEWEY C. WHITENTON, CHANCELLOR
Erich M. Shultz of Memphis
For Appellants
David M. Livingston of Brownsville
For Appellees
AFFIRMED AND REMANDED
Opinion filed:
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W. FRANK CRAWFORD,
PRESIDING JUDGE, W.S.
CONCUR:
ALAN E. HIGHERS, JUDGE
HOLLY KIRBY LILLARD, JUDGE
This appeal results from a dispute concerning ownership of real property. Although
the title to the property was confirmed in plaintiffs, Eugene Brooks and wife, Verdelle
Brooks, and they were awarded possession of the property, they appeal the trial court’s
order as to the damage judgment against defendants, T.R. Lambert, Sr., and wife, Vadie
Lambert; Tim Lambert and wife, Glenda Lambert.
In 1982, Eugene Brooks, and wife, Verdelle Brooks, purchased a five acre tract of
land in Hardeman County from Northwestern American, Inc. Northwestern American, Inc.
originally acquired a 90.70 acre tract of real estate on July 8, 1974 from Tyson Vickers after
Mr. Vickers had acquired the interest of the other Vickers heirs. At the time the plaintiffs
inspected and purchased the 5.10 acre tract, it was unenclosed and unimproved woodland.
From the time of the recording of their deed in 1982, the plaintiffs claimed ownership, paid
the real estate taxes, and treated the 5.10 acres of property as their own. The plaintiffs
visited periodically to inspect the property. At no time prior to 1992 did the plaintiffs see any
evidence of a competing claim of ownership on the 5.10 acres of real estate.
In 1992, defendants, Tim Lambert, and wife, Glenda Lambert, obtained a deed from
T.R. Lambert, Sr. and Vadie Lambert, for a ten acre tract of land that included land to the
east and west of Van Buren Road. The 5.10 acres of land to the west of Van Buren road
was the land claimed by the Brookses. T.R. and Vadie Lambert had purchased two tracts
of property in 1952 of which they deeded the ten acres to Tim and Glenda Lambert. The
legal description in the warranty deed given to Tim and Glenda Lambert was based on a
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survey of Clarence Goodrum, Jr., Registered Land Surveyor, dated June 1, 1992. After the
defendants, Tim and Glenda Lambert, filed their deed, they placed a mobile home on the
portion of the property on the northwestern side of Van Buren Road (the 5.10 acres),
installed a well and a culvert, built a driveway, and erected a shed. Upon learning of the
above action, the Brookses mailed a letter to the Lamberts asserting their title. When the
Lamberts refused to move, the Brookses brought the instant action.
At trial, Mr. Michael Gnall, Jr., testified for the plaintiffs. Gnall performed a survey in
1974, when Northwestern American was in the process of purchasing the 90.20 acres of
property from Tyson Vickers. He testified that according to his survey and based on his
search of the record deeds, including those of the Lamberts’ predecessors in title, the
defendant, T.R. Lambert, Sr., did not own the 5.10 acre tract in issue, but that he did own
other tracts located to the east and southeast of the 5.10 acres. Mr. Gnall also testified that
the defendant, T.R. Lambert, Sr., was aware of the conveyance from Tyson Vickers to
Northwestern American and specifically agreed on the location of the boundary lines of the
90.20 acres of property being conveyed. The defendants presented evidence at trial that
T.R. Lambert, Sr., hired Wayne Yates, a licensed land surveyor to survey all of his property
in 1979, and he concluded the 5.10 acres was owned by the Lamberts.
After a nonjury trial, the trial court found that the land was owned by the plaintiffs, that
the plaintiffs and their predecessors in title, Northwestern American, had at least
constructive possession of the 5.10 acres from 1974 until 1992, that the defendants, Tim
and Glenda Lambert, have not adversely held the property for the requisite period of time,
nor can they tack any holding to the holding of T.R. Lambert, Sr. and Vadie Lambert. These
findings are not contested.
The court awarded the plaintiffs $50.00 per month as a fair rental value for a period
of forty months. The court denied plaintiffs’ claim for libel of title and attorney fees, however,
finding that the defendants actions “in reliance on the survey conducted by Clarence
Goodrum were made in good faith and were not malicious.”
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Plaintiffs have appealed and present the following issues for review:
1. Did the Chancellor err in denying Plaintiffs’ claim for libel of
title?
2. Did the Chancellor err in denying award of Plaintiffs’ legal
fees and expenses?
3. Did the Chancellor err in awarding the
fair rental value of the
property for only forty
months when the
evidence was clear
and uncontroverted
that Defendants
occupied the land for
sixty-nine months?
Since this case was tried by the trial court sitting
without a jury, we
review the case de
novo upon the record
with a presumption of
correctness of the
findings of fact by the
trial court. Unless the
evidence
preponderates
against the findings,
we must affirm,
absent error of law.
T.R.A.P. 13(d).
In plaintiffs’ first issue, they assert that the trial court erred in not allowing plaintiffs to
recover for libel of title. Slander or libel of title was first recognized as a cause of action in
Smith v. Gernt, 2 Tenn. Civ. App. 65, 79-80 (1911). Harmon v. Shell, No.
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01-A-01-9211-CH-00451, 1994 WL 148663 (Tenn. App. M.S. Apr. 27, 1994) To establish a
successful claim for slander of title, a plaintiff must prove:
(1) that it has an interest in the property, (2) that the defendant
published false statements about the title to the property, (3) that
the defendant was acting maliciously, and (4) that the false
statements proximately caused the plaintiff a pecuniary loss.
(citations omitted).
Id. at *4. Statements made with reckless disregard of the property owner's rights or with
reckless disregard as to whether the statements are false may be malicious within the
scope of a libel of title action. Id. (citing Gernt, 2 Tenn. Civ. App. at 79-80). To assert this
cause of action, the plaintiff must allege "malice ... in express terms or [by] any such showing
of facts as would give rise to a reasonable inference that [the defendant acted maliciously.]"
Waterhouse v. McPheeters, 176 Tenn. 666, 669, 145 S.W.2d 766, 767 (1940). A good
faith, but erroneous, claim of title does not constitute a cause of action for libel of title. Ezell
v. Graves, 807 S.W.2d 700, 704 (Tenn. App. 1990).
The trial court found that the actions of the defendants, Tim and Glenda Lambert,
were not malicious. The plaintiffs assert that the trial court’s ruling was contrary to this Court’
s ruling in Ezell. The plaintiffs argue that the chancellor misconstrued malice to mean ill will
or spite and, therefore, rejected their claim.
The plaintiffs argue that notice of an underlying interest before filing a deed is sufficient to
establish malice. Further, plaintiffs contend that in finding that defendants acted in good
faith, the Chancellor erred in that good faith is not consistent with the knowledge that
defendants had before them at the time of their action. The plaintiffs submit that the
defendants had notice of an underlying interest before filing their deed, and that this notice
is sufficient to establish malice. We disagree. Ezell states that a good faith claim of title
does not constitute malice.
Considering the entire body of proof, we cannot say that the evidence
preponderates against the trial court's finding that the defendants actions were in good faith
and not malicious. The trial court evidently considered Wayne Yates’ testimony. Moreover,
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Tim Lambert testified that the Lambert family had used the land for hunting since he was a
small child. Further, it appears undisputed by the record that prior to accepting the deed
from T.R. Lambert, Sr., Tim Lambert did not know that Eugene and Verdelle Brooks
claimed the land in dispute.
The second issue on appeal involves the denial of plaintiffs’ legal fees and expenses.
Tennessee courts follow the “American Rule” with regard to awarding attorney’s fees.
Although attorney’s fees are not normally awarded in civil litigation absent a "contract,
statute or recognized ground in equity," State ex rel. Orr v. Thomas, 585 S.W.2d 606,
607 (Tenn. 1979), an exception to the general rule exists in cases involving libel of title.
Ezell v. Graves, 807 S.W.2d 700, 703 (Tenn. App. 1990). In Ezell, the Court explained the
rationale for permitting recovery in a case involving libel of title:
When a cloud has been cast upon the title to
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property. . . . The sole way of dispelling another's wrongful
assertion of title is by hiring an attorney and litigating. If the
defamed party were to simply speak out in denial, as he might
with a character attack, he could risk completely losing title by
adverse possession. The plaintiffs here were forced into court
by the defendants' actions. They were required to hire counsel,
take depositions, arrange for court reporters, and run up
numerous other expenses. These costs, which represented the
only possible course of action to clear their title, flow directly and
proximately from the defendants' conduct.
Id. at 703.
Plaintiffs contends that Ezell stands for the proposition that one who claims an
interest in realty which conflicts with a recorded deed is obligated to protect that interest
and, therefore, legal fees should be awarded. While the proper forum for disputes involving
the ownership of land is the courts, to adopt the plaintiffs’ argument would require an award
of legal fees in all cases involving property disputes. This theory is not consistent with the “
American Rule.”
The exception to the “American Rule” for libel of title actions is a narrow one.
Litigants who are successful in a libel of title action may recover reasonable expenses
incurred in that suit. Ezell, 807 S.W.2d at 703. However, the litigant must prove the
elements of a libel of title action, including malice, before an award of legal fees is
appropriate. In the instant case, the trial court correctly found plaintiffs’ libel of title action
lacking the necessary elements.
The third issue on appeal is whether the chancellor erred in awarding the fair rental
value of the property for only forty months when the defendants occupied the land for
sixty-nine months. The plaintiffs stipulated that the fair rental value of the property was fifty
dollars per month. The chancellor apparently reduced the award from sixty-nine months
($3,450.00) to forty months ($2,000.000) in consideration of the improvements made on the
land by Tim Lambert. Lambert testified that he had placed a permanent well on the
property, removed stumps from and graveled the driveway, and improved the general
appearance of the property. Tim Lambert further testified that he had improved the property
Page 7
by “several thousand dollars.” Tim Lambert’s testimony was undisputed as the plaintiff did
not put on any evidence regarding the improvements made to the land or question Lambert’
s cost estimate of the improvements. The chancellor undoubtedly accredited this testimony,
especially in the absence of any proof from plaintiffs that Lambert’s efforts did not in fact
improve the value of the property. The weight, faith, and credit to be given to any witness’s
testimony lies in the first instance with the trier of fact, and the credibility accorded will be
given great weight by the appellate court. In re Estate of Walton v. Young, 950 S.W.2d
956, 959 (Tenn. 1997). Based on the foregoing, we conclude that the evidence does not
preponderate against the findings of the trial court. T.R.A.P. 13(d).
The judgment of the trial court is affirmed, and the case is remanded for such further
proceedings as are necessary. Costs of the appeal are assessed against the appellants.
_________________________________
W. FRANK CRAWFORD,
PRESIDING JUDGE, W.S.
CONCUR:
____________________________________
ALAN E. HIGHERS, JUDGE
____________________________________
HOLLY KIRBY LILLARD, JUDGE
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