JOSEPHINE PHELPS, ET AL. v. VERN BENKE, JR. - Articles

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Posted by: Landry Butler on Jan 11, 2017

Court: TN Court of Appeals

Attorneys 1:

Jean Dyer Harrison and William G. Wojcik, Nashville, Tennessee, for the appellants, Josephine Phelps and Roy Smith.

Attorneys 2:

Michele McGill, Franklin, Tennessee, and Keith H. Solomon, Brentwood, Tennessee, for the appellee, Vern Benke, Jr.

Judge(s): GOLDIN

The appellants Josephine Phelps and Roy Smith (the “Appellants”) filed suit to assert rights to a tract of real property by adverse possession. On appeal, they claim that the trial court erred in concluding that they have no possessory rights to the land at issue. In part, they argue that the appellee's counterclaim for ejectment was untimely because it was not filed within seven years of the beginning of their adverse possession. We disagree and conclude that the trial court was correct in ordering the Appellants to vacate the disputed property. The Appellants' petition for adverse possession was filed before they had adversely possessed the property for a total of seven years. Moreover, pursuant to Tennessee Code Annotated section 28-1-114, the appellee's counterclaim for ejectment related back to the filing of the Appellants' original petition. We accordingly affirm the judgment of the trial court and remand for further proceedings consistent with this Opinion.

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