RONALD SWAFFORD v. DAVID AND SANDY WARD (Tenn. Ct. App. August 27, 2009)
When defendants obstructed plaintiffs' and abutting owners' use of alleyway, plaintiffs filed for declaratory judgment that the alley was a city street and they were entitled to use the alleyway. After an evidentiary hearing, the Trial Judge ruled that the alley had in fact been a city street and the City had abandoned it, but plaintiffs, as abutting owners, could continue to use the alleyway for ingress and egress. Defendants have appealed. We affirm the Trial Court.
Opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/swaffordr_082709.pdf
Wednesday, October 14, 2009
Court examines whether purchasers of property were on inquiry notice of lien against seller
NINA SUH v. RAYMOND GIBBS, ET AL. (Tenn. Ct. App. August 27, 2009)
In this litigation, Nina Suh (the "plaintiff") sued the purchaser of property once owned by Jung Lim Lee to enforce a judgment lien the plaintiff recorded against Jung L. Fowler. Lee and Fowler are the same person. The complaint asks that property identified as lot 6 of Hampton Hall Subdivision, Knoxville, be sold to satisfy the lien. The original defendants were Robert L. Davis, who purchased the property directly from Lee, and Davis' mortgagee, New Century Mortgage. Davis later sold to Raymond Gibbs and Edith Gibbs, who were substituted as defendants in place of Davis. The defendants moved for summary judgment on the ground that the lien recorded against Fowler was ineffective against them since they purchased from a title holder named Lee and the recording did not give them notice of a lien against Lee. The trial court granted summary judgment on the basis of this court's opinions in Young v. RAC Express, Inc., No. E2005-01165-COA-R3-CV, 2006 WL 1699001 (Tenn. Ct. App., filed June 21, 2006) and Gibson v. Flynn, No. 88-120-II, 1988 WL 119257 (Tenn. Ct. App., filed November 10, 1988). The plaintiff appeals. We affirm pursuant to the provisions of Court of Appeals Rule 10.1.
Opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/suhn_082709.pdf
In this litigation, Nina Suh (the "plaintiff") sued the purchaser of property once owned by Jung Lim Lee to enforce a judgment lien the plaintiff recorded against Jung L. Fowler. Lee and Fowler are the same person. The complaint asks that property identified as lot 6 of Hampton Hall Subdivision, Knoxville, be sold to satisfy the lien. The original defendants were Robert L. Davis, who purchased the property directly from Lee, and Davis' mortgagee, New Century Mortgage. Davis later sold to Raymond Gibbs and Edith Gibbs, who were substituted as defendants in place of Davis. The defendants moved for summary judgment on the ground that the lien recorded against Fowler was ineffective against them since they purchased from a title holder named Lee and the recording did not give them notice of a lien against Lee. The trial court granted summary judgment on the basis of this court's opinions in Young v. RAC Express, Inc., No. E2005-01165-COA-R3-CV, 2006 WL 1699001 (Tenn. Ct. App., filed June 21, 2006) and Gibson v. Flynn, No. 88-120-II, 1988 WL 119257 (Tenn. Ct. App., filed November 10, 1988). The plaintiff appeals. We affirm pursuant to the provisions of Court of Appeals Rule 10.1.
Opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/suhn_082709.pdf
Court reviews whether municipal planning commisision has statutory authority to approve site development plans
ROB ROTEN AND JERROLD SWAFFORD v. THE CITY OF SPRING HILL, TENNESSEE, ACTING BY AND THROUGH ITS PLANNING COMMISSION, AND IS INVESTMENT, INC. (Tenn. Ct. App. August 27, 2009)
Residents of the City of Spring Hill brought common law writ of certiorari challenging the City Planning Commission's authority to approve site development plans for proposed construction within the City. The Chancery Court upheld the action of the Planning Commission. Finding no error, we affirm the judgment.
Opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/rotenr_082709.pdf
Residents of the City of Spring Hill brought common law writ of certiorari challenging the City Planning Commission's authority to approve site development plans for proposed construction within the City. The Chancery Court upheld the action of the Planning Commission. Finding no error, we affirm the judgment.
Opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/rotenr_082709.pdf
Court rules on superior title to/adverse possession of disputed property
SCOTT A. HEATON, ET AL. v. DEAN STEFFEN, ET AL. (Tenn. Ct. App. August 27, 2009)
This litigation is about disputed ownership of 20 acres of mountain land in Carter County. The case was tried without a jury resulting in a judgment for Dean Steffen ("the defendant"). The trial court found that there was no question as to the amount or location of the disputed property ("the Disputed area"). Brothers Scott A. Heaton and Daniel J. Heaton ("the plaintiffs") proceeded on two theories: (1) that they had superior title to the Disputed area, and, if not, (2) that the land had been adversely possessed long enough to sustain their ownership. The court found that the defendant, who purchased his land in 1985, had superior title to the Disputed area through deeds that dated back to the 1800s. The defendant's chain of title did not vary in description or acreage. The court found that the plaintiffs' title to the Disputed Area was based solely on a deed of correction made in 1987 by family members, a deed that the court found had no legal basis. The trial court also found that the plaintiffs had not established adverse possession. After judgment was entered for the defendant, the plaintiffs moved to alter or amend the judgment, asking, among other things, for an order defining the complete boundaries of their land to include the Disputed area. The trial court denied the motion. The plaintiffs appeal. We affirm.
Opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/heatons_082709.pdf
This litigation is about disputed ownership of 20 acres of mountain land in Carter County. The case was tried without a jury resulting in a judgment for Dean Steffen ("the defendant"). The trial court found that there was no question as to the amount or location of the disputed property ("the Disputed area"). Brothers Scott A. Heaton and Daniel J. Heaton ("the plaintiffs") proceeded on two theories: (1) that they had superior title to the Disputed area, and, if not, (2) that the land had been adversely possessed long enough to sustain their ownership. The court found that the defendant, who purchased his land in 1985, had superior title to the Disputed area through deeds that dated back to the 1800s. The defendant's chain of title did not vary in description or acreage. The court found that the plaintiffs' title to the Disputed Area was based solely on a deed of correction made in 1987 by family members, a deed that the court found had no legal basis. The trial court also found that the plaintiffs had not established adverse possession. After judgment was entered for the defendant, the plaintiffs moved to alter or amend the judgment, asking, among other things, for an order defining the complete boundaries of their land to include the Disputed area. The trial court denied the motion. The plaintiffs appeal. We affirm.
Opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/heatons_082709.pdf
Court examines whether timber cutter was bona fide purchaser of timber rights
REMOTE WOODYARDS, LLC. v. THE ESTATE OF ROMIE NEISLER, ET AL. (Tenn. Ct. App. August 25, 2009)
This case arises from a dispute over a timber contract. Appellees, through their attorney-in-fact, executed a timber deed in favor of John Jones, which deed was recorded. Mr. Jones then assigned the deed to the Appellant herein, and this assignment was not recorded. When the Appellees discovered that Mr. Jones' checks were insufficient, they re-sold the timber to the third-party defendant. The third party paid value for the timber, and proceeded to cut and remove it. Appellant then filed suit against the Appellees and the third party defendant. The trial court found that Appellant was a bona fide purchaser for value, but declined to award double or treble damages pursuant to Tenn. Code Ann. section 43-28-312. The trial court also relieved the Appellees' attorney-in-fact from liability, and determined that the third party defendant was also a bona fide purchaser and, therefore, not liable. Appellant appeals. We affirm.
Opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/remotewoodyards_082509.pdf
This case arises from a dispute over a timber contract. Appellees, through their attorney-in-fact, executed a timber deed in favor of John Jones, which deed was recorded. Mr. Jones then assigned the deed to the Appellant herein, and this assignment was not recorded. When the Appellees discovered that Mr. Jones' checks were insufficient, they re-sold the timber to the third-party defendant. The third party paid value for the timber, and proceeded to cut and remove it. Appellant then filed suit against the Appellees and the third party defendant. The trial court found that Appellant was a bona fide purchaser for value, but declined to award double or treble damages pursuant to Tenn. Code Ann. section 43-28-312. The trial court also relieved the Appellees' attorney-in-fact from liability, and determined that the third party defendant was also a bona fide purchaser and, therefore, not liable. Appellant appeals. We affirm.
Opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/remotewoodyards_082509.pdf
Court examines whether carport construction violates restrictive covenants of homeowner's association
FEATHERFOOT POINT PROPERTY OWNERS ASSOCIATION, INC. v. JIM ZWEIG, ET AL. (Tenn. Ct. App. August 25, 2009)
This appeal arises from Appellant's action to enforce a restrictive covenant in a residential subdivision. The matter was heard by the trial court in a non-jury trial on August 12, 2008. Before Appellant completed its presentation of evidence, the trial court sua sponte ended the proceeding and entered an order of involuntary dismissal. Finding that the trial court erred in dismissing the case before Appellant completed its presentation of evidence, we reverse.
Opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/featherfoot_082509.pdf
This appeal arises from Appellant's action to enforce a restrictive covenant in a residential subdivision. The matter was heard by the trial court in a non-jury trial on August 12, 2008. Before Appellant completed its presentation of evidence, the trial court sua sponte ended the proceeding and entered an order of involuntary dismissal. Finding that the trial court erred in dismissing the case before Appellant completed its presentation of evidence, we reverse.
Opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/featherfoot_082509.pdf
Court examines whether implied easement exhists to abandoned public road
JAMIE McAFEE, ET AL. v. RUBY LAMBERT, ET AL. (Tenn. Ct. App. August 21, 2009)
Defendant landowners appeal the trial court's judgment finding that they had dedicated a roadway to public use by implication, and ordering the parties to widen the roadway and move utility lines. We dismiss for lack of a final judgment.
Opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/mcafeej_082109.pdf
Defendant landowners appeal the trial court's judgment finding that they had dedicated a roadway to public use by implication, and ordering the parties to widen the roadway and move utility lines. We dismiss for lack of a final judgment.
Opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/mcafeej_082109.pdf
Court reviews appropriateness of court-ordered partition by sale where partition in kind would detract from property values
EMMA LOU HALE v. GERALD D. HALE AND BONNIE F. HALE (Tenn. Ct. App. August 13, 2009)
Plaintiff sought a partition by sale of property she owned as a tenant in common. The defendants sought a partition in kind. The undisputed proof showed that the parcels were more valuable if sold together than if they were divided and sold separately. The trial court ordered the property sold. The defendants appealed. We affirm.
Opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/halee_081309.pdf
Plaintiff sought a partition by sale of property she owned as a tenant in common. The defendants sought a partition in kind. The undisputed proof showed that the parcels were more valuable if sold together than if they were divided and sold separately. The trial court ordered the property sold. The defendants appealed. We affirm.
Opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/halee_081309.pdf
Applicability of City of Smyrna's Storm Water User Fees to Agricultural Land
TN Attorney General Opinions
August 5, 2009
Opinion Number: 09-147
Opinion may be found at the TBA website:
http://www.tba2.org/tba_files/AG/2009/ag_09_147.pdf
TN Attorney General Opinions
August 5, 2009
Opinion Number: 09-147
Opinion may be found at the TBA website:
http://www.tba2.org/tba_files/AG/2009/ag_09_147.pdf
Court examines maintenance covenant and forfeiture clause of lease agreement in lease breach case
DONNA MARIE RICHMOND, ET AL. v. JEAN FRAZIER CORRECTION (Tenn. Ct. App. August 5, 2009)
This appeal concerns the termination of a lease and the subsequent initiation of a detainer action. Donna Marie Richmond, Harry Richmond, II, and Rebecca R. White ("Lessors") alleged that the lessee, Jean Frazier ("Ms. Frazier"), defaulted on the Church Hill Lease ("Lease") as a result of the deteriorating condition of the Church Hill Shopping Center. When Ms. Frazier refused to relinquish the premises after termination of the Lease, Lessors filed the detainer action to reclaim the property. After a trial, the Chancery Court held that Ms. Frazier did not break the Lease because of the prior course of conduct of the parties and that Ms. Frazier took reasonable care of the premises. Based on the plain language of the Lease agreement and the factual findings of the trial court, we reverse.
Opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/richmondd_CORR_080509.pdf
This appeal concerns the termination of a lease and the subsequent initiation of a detainer action. Donna Marie Richmond, Harry Richmond, II, and Rebecca R. White ("Lessors") alleged that the lessee, Jean Frazier ("Ms. Frazier"), defaulted on the Church Hill Lease ("Lease") as a result of the deteriorating condition of the Church Hill Shopping Center. When Ms. Frazier refused to relinquish the premises after termination of the Lease, Lessors filed the detainer action to reclaim the property. After a trial, the Chancery Court held that Ms. Frazier did not break the Lease because of the prior course of conduct of the parties and that Ms. Frazier took reasonable care of the premises. Based on the plain language of the Lease agreement and the factual findings of the trial court, we reverse.
Opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/richmondd_CORR_080509.pdf
RODNEY MARRA v. BANK OF NEW YORK, TRUSTEE, AND PHILIP M. KLEINSMITH, TRUSTEE (Tenn. Ct. App. August 4, 2009)
This appeal involves a court clerk's fee for facilitating a foreclosure sale. The defendant bank held a foreclosure sale of the plaintiff's home without giving the plaintiff proper notice. The plaintiff then filed this action and the sale was set aside. The trial court ordered that the property be re-auctioned and appointed the clerk and master of the chancery court as a special commissioner to facilitate the sale. At the second sale, the plaintiff purchased the property. The trial court ordered that the clerk be awarded 5% of the purchase price as his fee for services rendered in connection with the sale. The bank objected, arguing that the clerk's fee was excessive. The trial court conducted a hearing and held that the fee to the clerk was reasonable. The bank appealed, naming the court clerk as an appellee in the notice of appeal, but failing to file a motion to add him as a party. The appeal was dismissed for lack of a final order. On remand, the court clerk filed a motion asking the trial court to confirm that he was immune from suit and that disbursement of his fee was proper. The clerk also sought Rule 11 sanctions in the form of appellate attorney's fees against the bank's attorney for naming him as a party in the notice of appeal without properly adding him. The bank filed two cross-motions for sanctions. The trial court held that the clerk was immune from suit and that disbursement of the fee to the clerk was proper. The clerk's motion for Rule 11 sanctions was granted, and the bank's two cross-motions for sanctions were denied. The bank and its attorney now appeal. We hold that the statement of the evidence filed by the appellants and not objected to by the appellees or ruled on by the trial court is deemed approved under T.R.A.P. 24. Addressing the merits, we reverse the trial court's award of appellate attorney's fees as sanctions under Rule 11. All other decisions by the trial court are affirmed.
Opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/marrar_080409.pdf
This appeal involves a court clerk's fee for facilitating a foreclosure sale. The defendant bank held a foreclosure sale of the plaintiff's home without giving the plaintiff proper notice. The plaintiff then filed this action and the sale was set aside. The trial court ordered that the property be re-auctioned and appointed the clerk and master of the chancery court as a special commissioner to facilitate the sale. At the second sale, the plaintiff purchased the property. The trial court ordered that the clerk be awarded 5% of the purchase price as his fee for services rendered in connection with the sale. The bank objected, arguing that the clerk's fee was excessive. The trial court conducted a hearing and held that the fee to the clerk was reasonable. The bank appealed, naming the court clerk as an appellee in the notice of appeal, but failing to file a motion to add him as a party. The appeal was dismissed for lack of a final order. On remand, the court clerk filed a motion asking the trial court to confirm that he was immune from suit and that disbursement of his fee was proper. The clerk also sought Rule 11 sanctions in the form of appellate attorney's fees against the bank's attorney for naming him as a party in the notice of appeal without properly adding him. The bank filed two cross-motions for sanctions. The trial court held that the clerk was immune from suit and that disbursement of the fee to the clerk was proper. The clerk's motion for Rule 11 sanctions was granted, and the bank's two cross-motions for sanctions were denied. The bank and its attorney now appeal. We hold that the statement of the evidence filed by the appellants and not objected to by the appellees or ruled on by the trial court is deemed approved under T.R.A.P. 24. Addressing the merits, we reverse the trial court's award of appellate attorney's fees as sanctions under Rule 11. All other decisions by the trial court are affirmed.
Opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/marrar_080409.pdf
KINZEL SPRINGS PARTNERSHIP v. HAROLD KING, ET AL. (Tenn. Crt. App. July 31, 2009)
In this action to quiet title, the plaintiff sought the declaration of the true boundary line between the parties, along with an award of the litigation expenses, discretionary costs, and attorneys' fees incurred in protecting the title to the property. Following a bench trial, the court agreed with the property line claimed by the plaintiff. The defendants appeal. We affirm.
Opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/kinzel_073109.pdf
In this action to quiet title, the plaintiff sought the declaration of the true boundary line between the parties, along with an award of the litigation expenses, discretionary costs, and attorneys' fees incurred in protecting the title to the property. Following a bench trial, the court agreed with the property line claimed by the plaintiff. The defendants appeal. We affirm.
Opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/kinzel_073109.pdf
JIM DOWD, ET AL. v. JAMES A. CANAVAN, ET AL. (Tenn. Ct. App. July 31, 2009)
This case was brought by potential purchasers of a farm, Jim Dowd and Peggy Dowd ("the Buyers"), against the potential sellers, James A. Canavan and Ann Canavan ("the Sellers") to recover earnest money retained by the Sellers under a sales contract. After a bench trial, the court determined the Buyers are entitled to recover the earnest money deposit because they had been unable to secure financing, which was a contingency acknowledged in the contract. The Sellers appeal, arguing that the Buyers were able to arrange financing, and, alternatively, that they did not try hard enough. We affirm.
Opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/dowdj_073109.pdf
This case was brought by potential purchasers of a farm, Jim Dowd and Peggy Dowd ("the Buyers"), against the potential sellers, James A. Canavan and Ann Canavan ("the Sellers") to recover earnest money retained by the Sellers under a sales contract. After a bench trial, the court determined the Buyers are entitled to recover the earnest money deposit because they had been unable to secure financing, which was a contingency acknowledged in the contract. The Sellers appeal, arguing that the Buyers were able to arrange financing, and, alternatively, that they did not try hard enough. We affirm.
Opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/dowdj_073109.pdf
BOBBY J. COLLINS v. LYNDA C. FUGATE (Tenn. Crt. App. July 31, 2009)
This appeal arises out of litigation in the trial court pertaining to a disputed interest in the use of a boat dock. Bobby J. Collins filed suit against Lynda C. Fugate seeking compensation for labor expended and materials used in the construction of a boat dock. He claimed that, some ten years before filing suit, he helped build the dock on lakeside property owned by Ms. Fugate. The plaintiff contended that, in exchange for building the dock, the defendant gave him a "lifetime dowry" to use her property and dock his houseboat. The defendant acknowledged an agreement between the parties, but contended that it ended by its own terms before she revoked her permission for the defendant's continued use of the property. Following a bench trial, the court found that the plaintiff had a revocable personal license to use the defendant's property that was terminated when and by virtue of the fact he had sold his boat. The complaint was dismissed. We affirm.
Opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/collinsb_073109.pdf
This appeal arises out of litigation in the trial court pertaining to a disputed interest in the use of a boat dock. Bobby J. Collins filed suit against Lynda C. Fugate seeking compensation for labor expended and materials used in the construction of a boat dock. He claimed that, some ten years before filing suit, he helped build the dock on lakeside property owned by Ms. Fugate. The plaintiff contended that, in exchange for building the dock, the defendant gave him a "lifetime dowry" to use her property and dock his houseboat. The defendant acknowledged an agreement between the parties, but contended that it ended by its own terms before she revoked her permission for the defendant's continued use of the property. Following a bench trial, the court found that the plaintiff had a revocable personal license to use the defendant's property that was terminated when and by virtue of the fact he had sold his boat. The complaint was dismissed. We affirm.
Opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/collinsb_073109.pdf
Statute of Limitations Applicable to Challenges to Zoning Changes
TN Attorney General Opinions
Date: 2009-07-29
Opinion Number: 09-136
Opinion may be found at the TBA website:
http://www.tba2.org/tba_files/AG/2009/ag_09_136.pdf
TN Attorney General Opinions
Date: 2009-07-29
Opinion Number: 09-136
Opinion may be found at the TBA website:
http://www.tba2.org/tba_files/AG/2009/ag_09_136.pdf
BLUEGREEN VACATIONS UNLIMITED, INC. v. THE GOVERNOR'S CROSSING DESIGN AND REVIEW TEAM, ET AL. (Tenn. Ct. App. July 27, 2009)
This appeal involves the validity of a restrictive covenant at Governor's Crossing development in Sevier County, Tennessee. In August of 1998, a Declaration of Covenants, Easements, Restrictions and General Standards of Development (the "Declaration") pertaining to the various tracts of land at Governor's Crossing development in Sevier County was filed with the office of the Register of Deeds. At the same time, a Restrictive Covenant and Agreement (the "Restrictions") also was filed with the Register of Deeds. After Bluegreen purchased a tract of land at Governor's Crossing following foreclosure, Bluegreen filed this lawsuit seeking a declaratory judgment that it was not prohibited by the Declaration or the Restrictions from building, marketing, or selling timeshare units on this land. Following a trial, the Trial Court determined that the Declaration was not ambiguous and that this document gave defendant Fairfield Resorts Inc., the exclusive right to develop and market timeshares at Governor's Crossing until December 31, 2050. Bluegreen appeals, and we affirm.
Opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/bluegreen_072709.pdf
This appeal involves the validity of a restrictive covenant at Governor's Crossing development in Sevier County, Tennessee. In August of 1998, a Declaration of Covenants, Easements, Restrictions and General Standards of Development (the "Declaration") pertaining to the various tracts of land at Governor's Crossing development in Sevier County was filed with the office of the Register of Deeds. At the same time, a Restrictive Covenant and Agreement (the "Restrictions") also was filed with the Register of Deeds. After Bluegreen purchased a tract of land at Governor's Crossing following foreclosure, Bluegreen filed this lawsuit seeking a declaratory judgment that it was not prohibited by the Declaration or the Restrictions from building, marketing, or selling timeshare units on this land. Following a trial, the Trial Court determined that the Declaration was not ambiguous and that this document gave defendant Fairfield Resorts Inc., the exclusive right to develop and market timeshares at Governor's Crossing until December 31, 2050. Bluegreen appeals, and we affirm.
Opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/bluegreen_072709.pdf
HIGHWOODS PROPERTIES, INC. ET AL. v. CITY OF MEMPHIS (Tenn. Sup. Ct. July 27, 2009)
The Plaintiffs filed an action for declaratory judgment seeking to set aside a consent judgment entered in a lawsuit between property owners in an area of a proposed annexation and the City of Memphis. The earlier lawsuit, which the Plaintiffs failed to timely join, was a quo warranto challenge to an ordinance purporting to annex certain territory contiguous to the boundaries of the City. The consent judgment provided for the annexation of the territory described within the ordinance in two stages, with a portion of the area having an effective annexation date in 2006 and the remainder having an effective date in 2013. The trial court dismissed the complaint and the Court of Appeals affirmed. We granted permission to appeal in order to determine the propriety of the challenge to the consent decree approving of the two-step annexation. We hold that (1) the Plaintiffs are not authorized to file a declaratory judgment action challenging the consent judgment as violative of the terms of the annexation ordinance; and (2) the consent judgment did not create an unconstitutional taxing structure. The judgment of dismissal is, therefore, affirmed.
Opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TSC/2009/highwoods_072709.pdf
KOCH dissenting
http://www.tba2.org/tba_files/TSC/2009/highwoods_DIS_072709.pdf
The Plaintiffs filed an action for declaratory judgment seeking to set aside a consent judgment entered in a lawsuit between property owners in an area of a proposed annexation and the City of Memphis. The earlier lawsuit, which the Plaintiffs failed to timely join, was a quo warranto challenge to an ordinance purporting to annex certain territory contiguous to the boundaries of the City. The consent judgment provided for the annexation of the territory described within the ordinance in two stages, with a portion of the area having an effective annexation date in 2006 and the remainder having an effective date in 2013. The trial court dismissed the complaint and the Court of Appeals affirmed. We granted permission to appeal in order to determine the propriety of the challenge to the consent decree approving of the two-step annexation. We hold that (1) the Plaintiffs are not authorized to file a declaratory judgment action challenging the consent judgment as violative of the terms of the annexation ordinance; and (2) the consent judgment did not create an unconstitutional taxing structure. The judgment of dismissal is, therefore, affirmed.
Opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TSC/2009/highwoods_072709.pdf
KOCH dissenting
http://www.tba2.org/tba_files/TSC/2009/highwoods_DIS_072709.pdf
TAMMY JO GORDON, ET VIR v. WAYNE BEARD, ET UX. (Tenn. Ct. App. July 23, 2009)
Defendants appeal the trial court's reformation of a deed of trust and its finding that Plaintiffs own property free of any encumbrance. We dismiss for lack of a final judgment.
Opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/gordont_072309.pdf
Defendants appeal the trial court's reformation of a deed of trust and its finding that Plaintiffs own property free of any encumbrance. We dismiss for lack of a final judgment.
Opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/gordont_072309.pdf
LAMAR ADVERTISING COMPANY (formerly Outdoor Communications, Inc.) v. BY-PASS PARTNERS (Tenn. Ct. App. July 22, 2009)
This is a dispute over lease agreements. The plaintiff outdoor advertising company leased two parcels of property from the defendant real estate development company for the purpose of erecting billboard signs. The defendant then cancelled the leases. The defendant had contracted to sell the property to another outdoor advertising company, and cancelled the leases with the plaintiff in reliance on a lease provision allowing cancellation in the event that the plaintiff's signs interfered with the defendant's sale or development of the property. The plaintiff filed this lawsuit against the defendant, alleging that the defendant's cancellation was ineffective because this was not the type of interference that was contemplated in the agreement. The defendant counterclaimed, seeking damages allegedly suffered as a result of the plaintiff's failure to remove its billboards. Meanwhile, the third-party outdoor advertising company that was supposed to purchase the property filed a motion to intervene in the lawsuit, alleging that the plaintiff was interfering with its contractual relations with the defendant real estate development company. A trial was held, and no proof of damages was submitted. The defendant real estate development company and the third-party advertising company that sought to intervene asked for a hearing on damages in their post-trial brief. The trial court issued a letter ruling finding that the defendant's termination of the leases was effective. Years later, an order was entered reiterating the finding that the defendant effectively terminated the leases; the order set the matter for a special hearing on damages owed to the defendant real estate development company and the third-party advertising company. The third-party's motion to intervene was never explicitly granted. Shortly thereafter, the trial judge assigned to the case died. A substitute judge was assigned to hear the remainder of the case. In response to a series of motions, the trial court determined that the trial was properly bifurcated, that the third-party advertising company did not transfer its right to damages in a sale of its assets, and that its motion to intervene was never granted by the previous trial judge, and it therefore could not recover damages. The third- party advertising company now appeals. We reverse the trial court's decision that the motion to intervene was never granted, finding that the motion to intervene was implicitly granted in the order following the trial. We affirm the trial court's holding that the bifurcation was proper, that the defendant real estate development company effectively terminated the leases, and that the third-party advertising company that sought to purchase the property retained the right to damages after the sale of its assets. The case is remanded for a hearing on the damages owed to the third-party advertising company, if any.
Opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/lamaradvertising_072209.pdf
This is a dispute over lease agreements. The plaintiff outdoor advertising company leased two parcels of property from the defendant real estate development company for the purpose of erecting billboard signs. The defendant then cancelled the leases. The defendant had contracted to sell the property to another outdoor advertising company, and cancelled the leases with the plaintiff in reliance on a lease provision allowing cancellation in the event that the plaintiff's signs interfered with the defendant's sale or development of the property. The plaintiff filed this lawsuit against the defendant, alleging that the defendant's cancellation was ineffective because this was not the type of interference that was contemplated in the agreement. The defendant counterclaimed, seeking damages allegedly suffered as a result of the plaintiff's failure to remove its billboards. Meanwhile, the third-party outdoor advertising company that was supposed to purchase the property filed a motion to intervene in the lawsuit, alleging that the plaintiff was interfering with its contractual relations with the defendant real estate development company. A trial was held, and no proof of damages was submitted. The defendant real estate development company and the third-party advertising company that sought to intervene asked for a hearing on damages in their post-trial brief. The trial court issued a letter ruling finding that the defendant's termination of the leases was effective. Years later, an order was entered reiterating the finding that the defendant effectively terminated the leases; the order set the matter for a special hearing on damages owed to the defendant real estate development company and the third-party advertising company. The third-party's motion to intervene was never explicitly granted. Shortly thereafter, the trial judge assigned to the case died. A substitute judge was assigned to hear the remainder of the case. In response to a series of motions, the trial court determined that the trial was properly bifurcated, that the third-party advertising company did not transfer its right to damages in a sale of its assets, and that its motion to intervene was never granted by the previous trial judge, and it therefore could not recover damages. The third- party advertising company now appeals. We reverse the trial court's decision that the motion to intervene was never granted, finding that the motion to intervene was implicitly granted in the order following the trial. We affirm the trial court's holding that the bifurcation was proper, that the defendant real estate development company effectively terminated the leases, and that the third-party advertising company that sought to purchase the property retained the right to damages after the sale of its assets. The case is remanded for a hearing on the damages owed to the third-party advertising company, if any.
Opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/lamaradvertising_072209.pdf
QUOC TU PHAM, ET AL. v. CITY OF CHATTANOOGA, ET AL. (Tenn. Ct. App. July 20, 2009)
The plaintiffs filed an action for declaratory judgment to review an Ordinance changing the zoning of the plaintiffs' property. Upon concluding that the defendants improperly changed the zoning on the subject property, the trial court invalidated the Ordinance. The defendants appeal. We affirm.
Opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/phamq_072009.pdf
The plaintiffs filed an action for declaratory judgment to review an Ordinance changing the zoning of the plaintiffs' property. Upon concluding that the defendants improperly changed the zoning on the subject property, the trial court invalidated the Ordinance. The defendants appeal. We affirm.
Opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/phamq_072009.pdf
ROGER BALL ET AL. v. BRUCE McDOWELL ET AL. (Tenn. Sup. Ct. July 9, 2009)
The plaintiffs filed a lawsuit seeking a declaration that they have "a right-of-way easement" granted by deed and requesting the removal of encroachments by the defendants. The trial court granted the requested relief and held that the defendants failed to prove their claim of adverse possession. The trial court entered two consecutive "final" judgments. The defendants filed a motion to alter or amend the judgment within thirty days of entry of the second judgment. The plaintiffs responded that the defendants' motion was untimely because it was filed more than thirty days after entry of the first judgment. The trial court denied the defendants' motion to alter or amend without expressly ruling that the second judgment was the final judgment. The Court of Appeals concluded that the thirty-day period for filing the motion commenced with the entry of the second judgment and that the motion to alter or amend therefore was timely. The Court of Appeals reversed the judgment of the trial court and held that the defendants' claim of adverse possession was meritorious. We conclude that the first judgment constituted the "final judgment" and commenced the time for filing post-trial motions pursuant to Tennessee Rule of Civil Procedure 59.02. The defendants' motion to alter or amend therefore was untimely, and the Court of Appeals lacked jurisdiction to consider the defendants' appeal. We reverse the judgment of the Court of Appeals and remand to the trial court for dismissal of the case.
Opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TSC/2009/ballr_070909.pdf
The plaintiffs filed a lawsuit seeking a declaration that they have "a right-of-way easement" granted by deed and requesting the removal of encroachments by the defendants. The trial court granted the requested relief and held that the defendants failed to prove their claim of adverse possession. The trial court entered two consecutive "final" judgments. The defendants filed a motion to alter or amend the judgment within thirty days of entry of the second judgment. The plaintiffs responded that the defendants' motion was untimely because it was filed more than thirty days after entry of the first judgment. The trial court denied the defendants' motion to alter or amend without expressly ruling that the second judgment was the final judgment. The Court of Appeals concluded that the thirty-day period for filing the motion commenced with the entry of the second judgment and that the motion to alter or amend therefore was timely. The Court of Appeals reversed the judgment of the trial court and held that the defendants' claim of adverse possession was meritorious. We conclude that the first judgment constituted the "final judgment" and commenced the time for filing post-trial motions pursuant to Tennessee Rule of Civil Procedure 59.02. The defendants' motion to alter or amend therefore was untimely, and the Court of Appeals lacked jurisdiction to consider the defendants' appeal. We reverse the judgment of the Court of Appeals and remand to the trial court for dismissal of the case.
Opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TSC/2009/ballr_070909.pdf
KERRIE FROST v. JAMES SHEHANE, ET AL. (Tenn. Crt. App. July 7, 2009)
Tenant filed suit against former landlords, alleging violations of the Uniform Residential Landlord and Tenant Act ("URLTA") and the Tennessee Consumer Protection Act ("TCPA"). Landlords filed a counter-claim, alleging that tenant breached the lease. The trial court awarded damages to landlords for breach of lease and awarded punitive damages under the URLTA to tenant. Finding that the trial court erred in the amount of damages awarded to landlords, the award is modified. Finding that tenant elected to pursue treble damages under the TCPA, the award of punitive damages under the URLTA is vacated and the matter remanded for the trial court's consideration of whether an award of treble damages is warranted.
Opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/frostk_070709.pdf
Tenant filed suit against former landlords, alleging violations of the Uniform Residential Landlord and Tenant Act ("URLTA") and the Tennessee Consumer Protection Act ("TCPA"). Landlords filed a counter-claim, alleging that tenant breached the lease. The trial court awarded damages to landlords for breach of lease and awarded punitive damages under the URLTA to tenant. Finding that the trial court erred in the amount of damages awarded to landlords, the award is modified. Finding that tenant elected to pursue treble damages under the TCPA, the award of punitive damages under the URLTA is vacated and the matter remanded for the trial court's consideration of whether an award of treble damages is warranted.
Opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/frostk_070709.pdf
ESTATE OF BENJAMIN F. DARNELL, SR., ET AL. v. CHARLES FENN, ET AL. (Tenn. Crt. App. February 27, 2009)
Charles Fenn and Dott Fenn owned property in Sevier County. In August 1996, they entered into a contract to sell the property to Benjamin F. Darnell, Sr. The Fenns agreed to finance the sale over a ten-year period. According to the contract, Mr. Darnell was to make monthly payments of $999.11 for ten years, with one final balloon payment of $113,058.43. Mr. Darnell died in February 2004 and his wife, Mary Darnell, continued making the monthly payments. Unbeknownst to Ms. Darnell, on October 14, 2005, the Fenns sold the property to Teddy Jones. Four days later, Ms. Fenn, through her attorney, sent Ms. Darnell a letter terminating the contract based on various alleged breaches. Ms. Darnell filed suit seeking specific performance of the contract. Following a bench trial, the court found that the contract was enforceable; it ordered specific performance. The trial court rejected the claim of the defendant Teddy Jones that he was a bona fide purchaser without knowledge. The Fenns and Mr. Jones appeal. We affirm.
Opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/darnellb_022709.pdf
Charles Fenn and Dott Fenn owned property in Sevier County. In August 1996, they entered into a contract to sell the property to Benjamin F. Darnell, Sr. The Fenns agreed to finance the sale over a ten-year period. According to the contract, Mr. Darnell was to make monthly payments of $999.11 for ten years, with one final balloon payment of $113,058.43. Mr. Darnell died in February 2004 and his wife, Mary Darnell, continued making the monthly payments. Unbeknownst to Ms. Darnell, on October 14, 2005, the Fenns sold the property to Teddy Jones. Four days later, Ms. Fenn, through her attorney, sent Ms. Darnell a letter terminating the contract based on various alleged breaches. Ms. Darnell filed suit seeking specific performance of the contract. Following a bench trial, the court found that the contract was enforceable; it ordered specific performance. The trial court rejected the claim of the defendant Teddy Jones that he was a bona fide purchaser without knowledge. The Fenns and Mr. Jones appeal. We affirm.
Opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/darnellb_022709.pdf
Wednesday, September 16, 2009
Court reviews whether lessor violated a provision in the lease regarding exterior signage
VANDERBILT UNIVERSITY v. KAFIRISTAN BLOKES PARTNERSHIP d/b/a THE PRINCETON REVIEW OF TENNESSEE, ET AL. (Tenn. Ct. App. September 16, 2009)
Lessee appeals the trial court's finding on summary judgment that lessor did not violate a provision in their lease whereby lessor agreed to work with lessee to develop acceptable exterior signage. We affirm.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2009/vanderbilt_091609.pdf
Lessee appeals the trial court's finding on summary judgment that lessor did not violate a provision in their lease whereby lessor agreed to work with lessee to develop acceptable exterior signage. We affirm.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2009/vanderbilt_091609.pdf
Tuesday, September 8, 2009
Court reviews denial of a TRCP Rule 15 motion in an eminent domain case
BENTON COUNTY, TENNESSEE, ET AL. v. VERN FRANKLIN CHUMNEY (Tenn. Ct. App. September 8, 2009)
This is an eminent domain case. The Appellants appeal the trial court's denial of a Tenn. R. Civ. P. 15.02 motion. We dismiss the appeal for failure to appeal a final judgment.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2009/chumneyv_090809.pdf
This is an eminent domain case. The Appellants appeal the trial court's denial of a Tenn. R. Civ. P. 15.02 motion. We dismiss the appeal for failure to appeal a final judgment.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2009/chumneyv_090809.pdf
Wednesday, July 15, 2009
According to contract with 90 day default period, purchaser was not in default because even though he was late,no payments were more than 90 days late
THOMAS S. STARKS v. TROY D. WHITE
(Tenn.Ct. App. June 17, 2009).
This is a breach of contract case. Purchaser/Appellant appeals the trial court's finding that Purchaser/Appellant is in breach of the contract for sale of real property, and entry of judgment in favor of Seller/Appellee pursuant to the default provisions of the contract. Specifically, the trial court found Purchaser/Appellant in breach on grounds of late payments, failure to list Seller/Appellee as additional insured, and failure to provide proof of termite treatment. We modify and affirm on the grounds of failure to list Seller/Appellee as an additional insured and on failure to provide termite protection contract.
(Tenn.Ct. App. June 17, 2009).
This is a breach of contract case. Purchaser/Appellant appeals the trial court's finding that Purchaser/Appellant is in breach of the contract for sale of real property, and entry of judgment in favor of Seller/Appellee pursuant to the default provisions of the contract. Specifically, the trial court found Purchaser/Appellant in breach on grounds of late payments, failure to list Seller/Appellee as additional insured, and failure to provide proof of termite treatment. We modify and affirm on the grounds of failure to list Seller/Appellee as an additional insured and on failure to provide termite protection contract.
Opinion may be found at the TBA website:
"Under section seven of the contract, see supra, Mr. White’s payments can be up to ninety days late before he is actually in default. We have reviewed all of the checks and receipts submitted in this case, from all of which it appears that Mr. White was consistently late with his payments. But, again, the default period is ninety days under the contract. Although Mr. White’s payments are late, none appear to be more than ninety days so. From the proof, Mr. White’s November 8, 2006 payment was not made until January 12, 2007. His December 8, 2006 payment was not made until January 30, 2007, and the January 8, 2007 payment was not made until February 20, 2007. Although these payments were as much as sixty-four days late, we cannot agree with the trial court that more than ninety days elapsed between the payment and its due date so as to render Mr. White in default under the contract." Id.
First to file and provide notice has priority over all other interests in property
METRO CONSTRUCTION CO., LLC v. SIM ATTRACTIONS, LLC, ET AL.
(Tenn. Ct. App. June 9, 2009).
This case originated with a mechanic's and materialman's lien asserted by Plaintiff Metro Construction against commercial real property owned by Defendant/Cross Plaintiff Peabody Place Center in Memphis. It arises from improvements made by Metro Construction to a leasehold held by Defendant Sim Attractions. Sim Attractions abandoned the leasehold without compensating Metro Construction for the improvements, which included the installation of a several-ton race car simulator that remained in the abandoned leasehold. Defendant Fitraco claimed the simulator was its property under the terms of a lease agreement between Fitraco and Sim Attractions. It alternatively asserted a superior security interest. The trial court found that the simulator was personal property and determined that that the agreement between Sim Attractions and Fitraco was not a lease but an unperfected, disguised security agreement. The trial court attached the simulator to secure judgment in favor of Metro Construction. It also awarded Metro Construction discovery sanctions against Fitraco. The trial court awarded Peabody Place damages for lost rent. Fitraco appeals, asserting it had leased the simulator to Sim Attractions or, in the alternative, that it had properly perfected its security interest prior to judicial attachment by the trial court. It further asserts the damages claimed by Peabody Place were speculative. We reverse the judgment in favor of Metro Construction and affirm the judgment in favor of Peabody Place.
(Tenn. Ct. App. June 9, 2009).
This case originated with a mechanic's and materialman's lien asserted by Plaintiff Metro Construction against commercial real property owned by Defendant/Cross Plaintiff Peabody Place Center in Memphis. It arises from improvements made by Metro Construction to a leasehold held by Defendant Sim Attractions. Sim Attractions abandoned the leasehold without compensating Metro Construction for the improvements, which included the installation of a several-ton race car simulator that remained in the abandoned leasehold. Defendant Fitraco claimed the simulator was its property under the terms of a lease agreement between Fitraco and Sim Attractions. It alternatively asserted a superior security interest. The trial court found that the simulator was personal property and determined that that the agreement between Sim Attractions and Fitraco was not a lease but an unperfected, disguised security agreement. The trial court attached the simulator to secure judgment in favor of Metro Construction. It also awarded Metro Construction discovery sanctions against Fitraco. The trial court awarded Peabody Place damages for lost rent. Fitraco appeals, asserting it had leased the simulator to Sim Attractions or, in the alternative, that it had properly perfected its security interest prior to judicial attachment by the trial court. It further asserts the damages claimed by Peabody Place were speculative. We reverse the judgment in favor of Metro Construction and affirm the judgment in favor of Peabody Place.
Opinion may be found at the TBA website:
"Under Revised Article 9 as adopted in Tennessee and Wisconsin, Fitraco properly filed a financing statement giving sufficient notice of its interest in the simulator. Because the collateral - the simulator - was located in Tennessee, whether Fitraco’s perfected security interest gives it priority superior to Metro Construction’s interest pursuant to judicial attachment is governed by Tennessee law. UCC § 9-301(3)(C). Generally, but subject to exceptions not present here, Tennessee adheres to the “first to file” or the “first to perfect” rule to determine priority. A perfected security interest takes priority over a lien creditor." Id.
Convenience does not prevent the extinguishment of an easement by necessity
VICKIE ROBNETT V. EDWARD H. TENISON, J.R.
(Tenn. Ct. App. September 23, 2008).
The issue is whether a court-ordered easement by necessity for ingress and egress to landlocked property may be terminated on the ground it is no longer necessary because the landlocked owner has an express easement through which that owner has reasonable, although not as desirable, ingress and egress. The trial court denied the petition to terminate the easement by necessity upon a finding it would place an undue burden on the landlocked property owner to have it terminated. We have determined the trial court applied an incorrect legal standard, that of undue burden, to deny the petition to terminate the easement at issue. Easements by necessity are dependent on the necessity that created them; therefore, a way of necessity continues only as long as a necessity for its use continues. The fact that the way of necessity would be the most convenient does not prevent its extinguishment when it ceases to be absolutely necessary. Accordingly, we reverse the decision of the trial court.
Opinion may be found at the TBA website:
http://www.tsc.state.tn.us/
"The existence of an easement by necessity is dependent on the necessity that created it. 28A C.J.S. Easements § 161 (2008). Therefore, “a way of necessity continues as long, but only as long, as a necessity for its use continues.” Id. (emphasis added). “If an easement for a particular purpose is granted, when that purpose no longer exists, there is an end of the easement.” McGiffin v. City of Gatlinburg, 260 S.W.2d 152, 154 (Tenn. 1953) (quoting Washburn, Treatise on Easement, 654 (3d ed.)). “The fact that a former way of necessity continues to be the most convenient way will not prevent its extinguishment when it ceases to be absolutely necessary.” Id.
JIMMY KYLE, ET AL. V. J.A. FULMER TRUST
(Tenn. Ct. App. December 9, 2008).
This appeal concerns a purchase option in a lease of a tract of land in Shelby County, Tennessee. Executed in 1950, the lease had an initial term of 50 years and six months. In 1953, the Lessee exercised its option to renew, allowing possession for an additional 50 years through 2050. In 2001, the Lessee attempted to exercise its option to purchase the leased property. Lessor then sought a declaratory judgment determining the validity of the purchase option, and if valid, the value to be paid for the Lessor’s interest in the property. The trial court found that the Lessee properly exercised the purchase option and that the value of the Lessor’s interest should be based upon the property as unencumbered by the remaining 50-year lease term. We affirm the trial court’s finding regarding the purchase option, but reverse its determination of the value of the Lessor’s interest in the property. Affirmed in part, reversed in part and remanded.
Opinion may be found at the TBA website:
http://www.tsc.state.tn.us/
JEROME WILLIAM DEVEREAUX, JR., ET UX. v. JEROME WILLIAM DEVEREAUX, SR., ET UX.
(Tenn. Ct. App. June 5, 2009).
This case involves a family dispute over real property. The plaintiffs filed suit to enforce a document which purported to convey to them a co-ownership interest in certain property and to estop and enjoin the defendants from selling the property at issue. After a bench trial, the trial court found that the plaintiffs were "equitably entitled to ownership of the five acre tract they have improved." We affirm.
(Tenn. Ct. App. June 5, 2009).
This case involves a family dispute over real property. The plaintiffs filed suit to enforce a document which purported to convey to them a co-ownership interest in certain property and to estop and enjoin the defendants from selling the property at issue. After a bench trial, the trial court found that the plaintiffs were "equitably entitled to ownership of the five acre tract they have improved." We affirm.
Opinion may be found at the TBA website:
SAM L. HULL v. STUART THOMAS HOOD, ET AL.
(Tenn. Ct. App. June 1, 2009).
Landowner, who brought suit against adjoining property owners to recover for trespass, conversion of property and damages for removal of timber on his property, appeals the trial court's determination of common boundary line between the parties' property and dismissal of claims related to removal of timber. We affirm the judgment of the trial court.
(Tenn. Ct. App. June 1, 2009).
Landowner, who brought suit against adjoining property owners to recover for trespass, conversion of property and damages for removal of timber on his property, appeals the trial court's determination of common boundary line between the parties' property and dismissal of claims related to removal of timber. We affirm the judgment of the trial court.
Opinion may be found at the TBA website:
JOHN S. BRYAN, JR., ET AL. v. WILLIAM R. (BILL) MITCHELL, JR., ET AL.
(Tenn. Ct. App. June 1, 2009).
John S. Bryan, Jr. and Debbie W. Bryan ("Plaintiffs") sued William R. (Bill) Mitchell, Jr. and Sherry L. Mitchell ("Defendants") in a dispute over real property located in Lincoln County, Tennessee. The case was heard before a Special Master. After a hearing, the Trial Court entered an order, inter alia, adopting the Special Master's findings. Defendants appeal to this Court. No transcript or statement of the evidence is in the record on appeal. We affirm.
(Tenn. Ct. App. June 1, 2009).
John S. Bryan, Jr. and Debbie W. Bryan ("Plaintiffs") sued William R. (Bill) Mitchell, Jr. and Sherry L. Mitchell ("Defendants") in a dispute over real property located in Lincoln County, Tennessee. The case was heard before a Special Master. After a hearing, the Trial Court entered an order, inter alia, adopting the Special Master's findings. Defendants appeal to this Court. No transcript or statement of the evidence is in the record on appeal. We affirm.
Opinion may be found at the TBA website:
RICHARD T.D. BETHEA, ET AL. v. SONG HEE HONG, ET AL.
(Tenn. Ct. App. May 29, 2009)
This appeal involves a dispute arising out of a contract for the sale of Appellant's house. After the contract was executed, Appellees conducted a home inspection which revealed mold in the home's air ducts. Appellants refused to repair the air ducts, and Appellees terminated the agreement. Both parties filed motions for summary judgment. The trial court granted summary judgment in favor of Appellees finding that termination was an available remedy under the terms of the agreement. Finding no error in this conclusion, we affirm the judgment of the trial court.
(Tenn. Ct. App. May 29, 2009)
This appeal involves a dispute arising out of a contract for the sale of Appellant's house. After the contract was executed, Appellees conducted a home inspection which revealed mold in the home's air ducts. Appellants refused to repair the air ducts, and Appellees terminated the agreement. Both parties filed motions for summary judgment. The trial court granted summary judgment in favor of Appellees finding that termination was an available remedy under the terms of the agreement. Finding no error in this conclusion, we affirm the judgment of the trial court.
Opinion may be found at the TBA website:
DONNIE VAUGHT, ET AL. v. ALAN JAKES, SR. and wife DEBORAH JAKES, ET AL.
(Tenn. Ct. App. May 26, 2009).
A group of Rutherford County landowners whose property abutted one side of a private road which they maintained at their own expense filed a suit for trespass against a neighbor and developer who used the same road for access to houses he was building on the other side. Their suit also included a due process claim against the County for erroneously granting building permits for those houses. The trial court agreed that the building permits were granted in error, but ruled that the county's action was an innocent error rather than a due process violation. The trial court also dismissed the plaintiffs' claims against the developer, holding that he was entitled to use the road because of a permanent easement he had acquired from his predecessors-in-interest. We affirm the trial court's dismissal of the due process claim, but reverse its dismissal of the trespass claim because the evidence shows that the individual who sold the property to the defendant had abandoned the easement and, thus, that the defendant had no right to use the road.
(Tenn. Ct. App. May 26, 2009).
A group of Rutherford County landowners whose property abutted one side of a private road which they maintained at their own expense filed a suit for trespass against a neighbor and developer who used the same road for access to houses he was building on the other side. Their suit also included a due process claim against the County for erroneously granting building permits for those houses. The trial court agreed that the building permits were granted in error, but ruled that the county's action was an innocent error rather than a due process violation. The trial court also dismissed the plaintiffs' claims against the developer, holding that he was entitled to use the road because of a permanent easement he had acquired from his predecessors-in-interest. We affirm the trial court's dismissal of the due process claim, but reverse its dismissal of the trespass claim because the evidence shows that the individual who sold the property to the defendant had abandoned the easement and, thus, that the defendant had no right to use the road.
Opinion may be found at the TBA website:
ARTHUR CREECH ET AL. v. ROBERT R. ADDINGTON ET AL. CORRECTION
(Tenn. Sup. Ct. March 27, 2009)
The eleven Plaintiffs, investors in a real estate development in Tunica, Mississippi, suffered losses when the financing for hotels on the tracts of land they had leased failed to materialize. Five of the Plaintiffs first learned of the investment opportunity in 1993 while attending a presentation by real estate agents Lloyd and Betty Link in Gatlinburg. After suit was filed against several Defendants based upon breach of oral and written contracts, the trial court entered an order of dismissal as to the Links and other of the Defendants and, later, granted a motion for summary judgment in favor of D.C. Parker and Richard Flowers, the owners of the land. When judgments had been entered as to all of the Defendants, the Plaintiffs appealed, but only as to Parker and Flowers. The Court of Appeals reversed, holding that whether an agency relationship existed between Parker and Flowers, as principals, and the Links, and whether the Links had been guilty of misrepresentation were disputed questions of fact. Upon remand, a jury found that the Links were the agents of Parker and Flowers, who were vicariously liable for fraudulent misrepresentations made by the Links. Damages were awarded to the Plaintiffs. In a second appeal, this time by Parker and Flowers, the Court of Appeals affirmed as to those five Plaintiffs who had attended the presentation in Gatlinburg, but remanded for a new trial as to those who did not. We granted an application for permission to appeal to consider whether the order of dismissal in favor of the agents precluded any adjudication of vicarious liability as to the principals. We find that the order of dismissal in regard to the Links has become final, was on the merits, and involves the same cause of action as the pending fraudulent misrepresentation claims. The doctrine of res judicata applies. Because the Plaintiffs' right of action against the agents has been extinguished by operation of law, the Plaintiffs are not entitled to a judgment against Parker and Flowers based solely upon the fraudulent misrepresentations by the Links as agents. Moreover, the Plaintiffs did not properly preserve for appeal their claims of direct liability against Parker and Flowers. The judgment of the Court of Appeals is, therefore, reversed, the jury's verdict assigning vicarious liability to Parker and Flowers is vacated, and the case is dismissed.
(Tenn. Sup. Ct. March 27, 2009)
The eleven Plaintiffs, investors in a real estate development in Tunica, Mississippi, suffered losses when the financing for hotels on the tracts of land they had leased failed to materialize. Five of the Plaintiffs first learned of the investment opportunity in 1993 while attending a presentation by real estate agents Lloyd and Betty Link in Gatlinburg. After suit was filed against several Defendants based upon breach of oral and written contracts, the trial court entered an order of dismissal as to the Links and other of the Defendants and, later, granted a motion for summary judgment in favor of D.C. Parker and Richard Flowers, the owners of the land. When judgments had been entered as to all of the Defendants, the Plaintiffs appealed, but only as to Parker and Flowers. The Court of Appeals reversed, holding that whether an agency relationship existed between Parker and Flowers, as principals, and the Links, and whether the Links had been guilty of misrepresentation were disputed questions of fact. Upon remand, a jury found that the Links were the agents of Parker and Flowers, who were vicariously liable for fraudulent misrepresentations made by the Links. Damages were awarded to the Plaintiffs. In a second appeal, this time by Parker and Flowers, the Court of Appeals affirmed as to those five Plaintiffs who had attended the presentation in Gatlinburg, but remanded for a new trial as to those who did not. We granted an application for permission to appeal to consider whether the order of dismissal in favor of the agents precluded any adjudication of vicarious liability as to the principals. We find that the order of dismissal in regard to the Links has become final, was on the merits, and involves the same cause of action as the pending fraudulent misrepresentation claims. The doctrine of res judicata applies. Because the Plaintiffs' right of action against the agents has been extinguished by operation of law, the Plaintiffs are not entitled to a judgment against Parker and Flowers based solely upon the fraudulent misrepresentations by the Links as agents. Moreover, the Plaintiffs did not properly preserve for appeal their claims of direct liability against Parker and Flowers. The judgment of the Court of Appeals is, therefore, reversed, the jury's verdict assigning vicarious liability to Parker and Flowers is vacated, and the case is dismissed.
The opinion may be found at the TBA website:
Friday, June 5, 2009
Plaintiff collaterally estopped because he was previously denied standing in a forfeiture action
GEORGE H. NASON, INDIVIDUALLY & AS TRUSTEE OF THE CHURCH STREET REALTY TRUST v. C & S HEATING, AIR, & ELECTRICAL, INC. AND O’BRIEN HEATING & AIR, INC.
(Tenn. Ct. App. April 30, 2009).
Plaintiff appeals summary judgment granted on claims for breach of contract, unjust enrichment and entitlement to quantum meruit relief. The trial court dismissed the complaint based on the doctrine of collateral estoppel finding Plaintiff’s claims or rights to the same property were finally adjudicated in federal court. We affirm.
Opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/nasong_043009.pdf
“Collateral estoppel and its companion doctrine, res judicata, “promote finality in litigation in order to conserve judicial resources and to relieve litigants from the cost and vexation of multiple lawsuits.” State ex rel. Cihlar v. Crawford, 39 S.W.3d 172, 178 (Tenn. Ct. App. 2000). Although both legal principles have preclusionary effects, res judicata and collateral estoppel are not the same. Res judicata, or claim preclusion, bars a second suit on the same cause of action between the same parties and is inapplicable here. See Lee v. Hall, 790 S.W.2d 293, 294 (Tenn. Ct. App. 1990). Collateral estoppel, or issue preclusion, bars the same parties or their privies from relitigating in a second suit issues that were actually raised and determined in the former suit. Massengill v. Scott, 738 S.W.2d 629, 631 (Tenn. 1987); Crawford, 39 S.W.3d at 178-79. “Once an issue has been actually or necessarily determined by a court of competent jurisdiction, the doctrine of collateral estoppel renders that determination conclusive on the parties and their privies in subsequent litigation, even when the claims or causes of action are different.” Crawford, 39 S.W.3d at 178-79 (citing Massengill, 738 S.W.2d at 631). Collateral estoppel applies to issues of law and fact. Id. at 179. “The estoppel of a judgment or decree extends to all matters material to the decision of the case which the parties exercising reasonable diligence might have brought forward at the time. A plaintiff may not reserve a theory which supports his action for a second lawsuit.” Id. .
“A party defending on the basis of collateral estoppel has the burden of proving (1) that the issue to be precluded is identical to the issue decided in the first suit; (2) that the issue was actually litigated and decided on the merits in the first suit; (3) that the underlying judgment was final; (4) that the party against whom estoppel is asserted was a party or is in privity with a party to the first suit; and (5) that the party against whom estoppel is asserted had a full and fair opportunity to litigate the issue now sought to be precluded.”Id. .
(Tenn. Ct. App. April 30, 2009).
Plaintiff appeals summary judgment granted on claims for breach of contract, unjust enrichment and entitlement to quantum meruit relief. The trial court dismissed the complaint based on the doctrine of collateral estoppel finding Plaintiff’s claims or rights to the same property were finally adjudicated in federal court. We affirm.
Opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/nasong_043009.pdf
“Collateral estoppel and its companion doctrine, res judicata, “promote finality in litigation in order to conserve judicial resources and to relieve litigants from the cost and vexation of multiple lawsuits.” State ex rel. Cihlar v. Crawford, 39 S.W.3d 172, 178 (Tenn. Ct. App. 2000). Although both legal principles have preclusionary effects, res judicata and collateral estoppel are not the same. Res judicata, or claim preclusion, bars a second suit on the same cause of action between the same parties and is inapplicable here. See Lee v. Hall, 790 S.W.2d 293, 294 (Tenn. Ct. App. 1990). Collateral estoppel, or issue preclusion, bars the same parties or their privies from relitigating in a second suit issues that were actually raised and determined in the former suit. Massengill v. Scott, 738 S.W.2d 629, 631 (Tenn. 1987); Crawford, 39 S.W.3d at 178-79. “Once an issue has been actually or necessarily determined by a court of competent jurisdiction, the doctrine of collateral estoppel renders that determination conclusive on the parties and their privies in subsequent litigation, even when the claims or causes of action are different.” Crawford, 39 S.W.3d at 178-79 (citing Massengill, 738 S.W.2d at 631). Collateral estoppel applies to issues of law and fact. Id. at 179. “The estoppel of a judgment or decree extends to all matters material to the decision of the case which the parties exercising reasonable diligence might have brought forward at the time. A plaintiff may not reserve a theory which supports his action for a second lawsuit.” Id. .
“A party defending on the basis of collateral estoppel has the burden of proving (1) that the issue to be precluded is identical to the issue decided in the first suit; (2) that the issue was actually litigated and decided on the merits in the first suit; (3) that the underlying judgment was final; (4) that the party against whom estoppel is asserted was a party or is in privity with a party to the first suit; and (5) that the party against whom estoppel is asserted had a full and fair opportunity to litigate the issue now sought to be precluded.”Id. .
Thursday, June 4, 2009
Court finds latent ambiguity in deed; allows parol evidence to show intent of the deed
RUTH M. COOPER, ET AL. v. KEVIN SMITH and NATHANIEL LINDER (Tenn. Ct. App. May 7, 2009).
Appellants filed this action for declaratory judgment asking the trial court to interpret a provision in a deed. The trial court concluded that the deed was unambiguous and did not allow Appellants to present parol evidence showing the grantor’s intent. We find that the deed contains a latent ambiguity and therefore reverse and remand this matter to the trial court.
Opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/cooperr_050709.pdf
"Parol evidence that adds to, varies, or contradicts the language of the deed is generally inadmissible. Parol evidence, however, may be admissible to remove a latent ambiguity in a deed; it is inadmissible to explain a patent ambiguity. Id. The Mitchell Court explained that “a patent ambiguity is one which appears on the face of the deed, while a latent ambiguity is one which is not discoverable from a perusal of the deed but which appears upon consideration of the extrinsic circumstances.” ‘ Id.
“In the present case, both parties agree that there was no entity or group known as “Wright Chapel Baptist Church” at the time the deed was executed. This is not apparent from simply examining the face of the deed. The ambiguity appears only after learning that “Wright Chapel Baptist Church” did not exist in 1969. The deed therefore contains a latent ambiguity, and Petitioners are entitled to present parol evidence to explain the meaning of the ambiguous term.” Id.
Appellants filed this action for declaratory judgment asking the trial court to interpret a provision in a deed. The trial court concluded that the deed was unambiguous and did not allow Appellants to present parol evidence showing the grantor’s intent. We find that the deed contains a latent ambiguity and therefore reverse and remand this matter to the trial court.
Opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/cooperr_050709.pdf
"Parol evidence that adds to, varies, or contradicts the language of the deed is generally inadmissible. Parol evidence, however, may be admissible to remove a latent ambiguity in a deed; it is inadmissible to explain a patent ambiguity. Id. The Mitchell Court explained that “a patent ambiguity is one which appears on the face of the deed, while a latent ambiguity is one which is not discoverable from a perusal of the deed but which appears upon consideration of the extrinsic circumstances.” ‘ Id.
“In the present case, both parties agree that there was no entity or group known as “Wright Chapel Baptist Church” at the time the deed was executed. This is not apparent from simply examining the face of the deed. The ambiguity appears only after learning that “Wright Chapel Baptist Church” did not exist in 1969. The deed therefore contains a latent ambiguity, and Petitioners are entitled to present parol evidence to explain the meaning of the ambiguous term.” Id.
Wednesday, June 3, 2009
Absent owners not given notice that hearing would involve demolition of house; court cannot use contempt power to authorize demolition
CITY OF FRANKLIN, TENNESSEE v. PEGGY HUNTER ET AL. (Tenn. Ct. App. May 6, 2009).
Property owners appeal an order authorizing the City of Franklin to demolish a house on their property. Because we have determined that the procedure used by the city did not comply with due process, we reverse.
Opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/city_of_franklin_050709.pdf
“The hearing at which the court gave the city the authority to demolish the Hunters’ property was a hearing on a fourth contempt motion. In light of the posture of the case and the manner in which this action arose, the Hunters had no notice that the hearing on September 20, 2007, would involve a request by the city for permission to demolish their property. Rather, the issue before the court was whether the Hunters were in contempt for failing to comply with the court’s previous order. The city did not file any pleadings to have the property declared a nuisance or to request authority to have the property demolished.” Id.
“The city argues that it essentially amended its pleadings at the hearing when it asked the court for permission to demolish the property and the Hunters failed to object. Tenn. R. Civ. P. 15.02 authorizes amendment of the pleadings to conform with the proof if additional issues are “tried by express or implied consent of the parties.” This theory does not work here, however, because the Hunters were not present at the point when the city raised the issue of demolition and there is nothing in the record to suggest that they impliedly consented to the determination of that issue.” Id.
“A court’s contempt powers can be used to compel obedience to its orders and to punish those who willfully disobey those orders. See Tenn. Code Ann. §§ 16-1-102 and 29-9-102. We know of no authority, and the city cites none, under which a court is empowered to order the demolition of a house as a punishment for contempt of an order requiring inspection and repair of the house. Even if a court might have such authority under some circumstances, the due process concerns discussed above would prohibit the imposition of such a remedy when the litigant had no notice that such a penalty was being requested.” Id.
Property owners appeal an order authorizing the City of Franklin to demolish a house on their property. Because we have determined that the procedure used by the city did not comply with due process, we reverse.
Opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/city_of_franklin_050709.pdf
“The hearing at which the court gave the city the authority to demolish the Hunters’ property was a hearing on a fourth contempt motion. In light of the posture of the case and the manner in which this action arose, the Hunters had no notice that the hearing on September 20, 2007, would involve a request by the city for permission to demolish their property. Rather, the issue before the court was whether the Hunters were in contempt for failing to comply with the court’s previous order. The city did not file any pleadings to have the property declared a nuisance or to request authority to have the property demolished.” Id.
“The city argues that it essentially amended its pleadings at the hearing when it asked the court for permission to demolish the property and the Hunters failed to object. Tenn. R. Civ. P. 15.02 authorizes amendment of the pleadings to conform with the proof if additional issues are “tried by express or implied consent of the parties.” This theory does not work here, however, because the Hunters were not present at the point when the city raised the issue of demolition and there is nothing in the record to suggest that they impliedly consented to the determination of that issue.” Id.
“A court’s contempt powers can be used to compel obedience to its orders and to punish those who willfully disobey those orders. See Tenn. Code Ann. §§ 16-1-102 and 29-9-102. We know of no authority, and the city cites none, under which a court is empowered to order the demolition of a house as a punishment for contempt of an order requiring inspection and repair of the house. Even if a court might have such authority under some circumstances, the due process concerns discussed above would prohibit the imposition of such a remedy when the litigant had no notice that such a penalty was being requested.” Id.
Tennessee Landowners ma purchase real property sold to pat delinquent taxes
HOME FUNDS DIRECT, A California Corporation/Delinquent Taxpayers v. William Garrett (Tenn. Ct. App. May 5, 2009).
This case involves the right to redeem property purchased at a tax sale. The trial court confirmed the petitioner’s right to redeem the property, divested title from the purchaser, and vested title in the original owners. The purchaser appeals. We affirm.
Opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/homefundsd_0500509.pdf
“In order to redeem property under these statutes, three requirements must be satisfied. State v. Burns, No. 01A01-9604-CH-00178, 1996 WL 668347, at *6 (Tenn. Ct. App. Nov. 20, 1996) perm. app. denied (Tenn. Apr. 7, 1997). First, Tennessee Code Annotated section 67-5-2701 outlines who may redeem the property. The statute provides that a “‘person entitled to redeem property’ includes any person who owns a legal or equitable interest in the property sold at the tax sale and creditors of the taxpayer having a lien on the property[.]” Tenn. Code Ann. § 67-5- 2701(a) (2006). Second, the person redeeming the property must pay “moneys to the clerk as required by § 67-5-2703 within one (1) year from the date the property was sold, as evidenced by the order of confirmation” entered by the trial court. Tenn. Code Ann. § 67-5-2702(a) (2006) (emphasis added). Third, the amount paid to the clerk must equal the sum of the following values: (1) “the amount paid for the delinquent taxes, interest and penalties,” (2) “court costs and any court ordered charges,” and (3) “interest at the rate of ten percent (10%) per annum computed from the date of the sale on the entire purchase price paid at the tax sale.” Tenn. Code Ann. § 67-5-2703 (2006); see also Burns, 1996 WL 668347, at *6. “In the event the purchaser expended additional funds during the redemption period, Tenn. Code Ann. § 67-5-2704 provides a procedure for recouping these funds[.]” Id.
This case involves the right to redeem property purchased at a tax sale. The trial court confirmed the petitioner’s right to redeem the property, divested title from the purchaser, and vested title in the original owners. The purchaser appeals. We affirm.
Opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/homefundsd_0500509.pdf
“In order to redeem property under these statutes, three requirements must be satisfied. State v. Burns, No. 01A01-9604-CH-00178, 1996 WL 668347, at *6 (Tenn. Ct. App. Nov. 20, 1996) perm. app. denied (Tenn. Apr. 7, 1997). First, Tennessee Code Annotated section 67-5-2701 outlines who may redeem the property. The statute provides that a “‘person entitled to redeem property’ includes any person who owns a legal or equitable interest in the property sold at the tax sale and creditors of the taxpayer having a lien on the property[.]” Tenn. Code Ann. § 67-5- 2701(a) (2006). Second, the person redeeming the property must pay “moneys to the clerk as required by § 67-5-2703 within one (1) year from the date the property was sold, as evidenced by the order of confirmation” entered by the trial court. Tenn. Code Ann. § 67-5-2702(a) (2006) (emphasis added). Third, the amount paid to the clerk must equal the sum of the following values: (1) “the amount paid for the delinquent taxes, interest and penalties,” (2) “court costs and any court ordered charges,” and (3) “interest at the rate of ten percent (10%) per annum computed from the date of the sale on the entire purchase price paid at the tax sale.” Tenn. Code Ann. § 67-5-2703 (2006); see also Burns, 1996 WL 668347, at *6. “In the event the purchaser expended additional funds during the redemption period, Tenn. Code Ann. § 67-5-2704 provides a procedure for recouping these funds[.]” Id.
Statute of repose bars construction claims brought too late; disclosure rule does not apply when claimant should have discovered the defect
KAYE LOCKWOOD v. RONALD G. HUGHES, ET AL. (Tenn. Ct. App. April 29, 2009).
Buyer of home filed complaint against Sellers for, among other things, violation of the Tennessee Consumer Protection Act (“TCPA”). The trial court granted summary judgment to Sellers on the TCPA claim on the ground that it was barred by the statute of repose. Buyer filed a Motion to Alter or Amend the Judgment, raising a new argument, which the trial court denied. On appeal, Buyer challenges: (1) the trial court’s grant of summary judgment, asserting that material facts were in dispute regarding Buyer’s allegation that Sellers fraudulently concealed defects in the home and that the fraudulent concealment tolled the statute of repose and (2) the trial court’s failure to consider the new argument raised in Buyer’s Motion to Alter or Amend. Finding the trial court’s actions to be proper in all respects, we affirm the decision.
Opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/lockwoodk_042909.pdf
“The trial court found that the home was substantially completed on August 1, 1997, and, consequently, the negligent construction and substandard workmanship claim was barred by the statute of limitations since it was brought more than 5 years after the date of substantial completion.” Id.
“To toll the application of the statute of repose based on an allegation of fraudulent concealment, a plaintiff is required to prove the following: (1) that the defendant took affirmative action to conceal the cause of action or remained silent and failed to disclose material facts despite a duty to do so; (2) the plaintiff could not have discovered the cause of action despite exercising reasonable care and diligence; (3) knowledge on the part of the defendant of the facts giving rise to the cause of action; and (4) concealment of material information from the plaintiff. Shadrick v. Coker, 963 S.W.2d 726, 735 (Tenn. 1998). “The tolling doctrine of fraudulent concealment does not apply to cases where the court finds a plaintiff was aware or should have been aware of facts sufficient to put the plaintiff on notice that a specific injury has been sustained as a result of another’s negligent or wrongful conduct.” Id.
“Ms. Lockwood did not have the home inspected prior to closing; that she was aware of a water leak in the home’s basement in 1999; and that she contacted the Hughes when the water leak first appeared but did not inform them during the next three years of the continuing problem. These materials were sufficient to negate an essential element of Ms. Lockwood’s fraudulent concealment claim, viz., that she could not have discovered the cause of action despite exercising reasonable care and diligence.” Id.
Buyer of home filed complaint against Sellers for, among other things, violation of the Tennessee Consumer Protection Act (“TCPA”). The trial court granted summary judgment to Sellers on the TCPA claim on the ground that it was barred by the statute of repose. Buyer filed a Motion to Alter or Amend the Judgment, raising a new argument, which the trial court denied. On appeal, Buyer challenges: (1) the trial court’s grant of summary judgment, asserting that material facts were in dispute regarding Buyer’s allegation that Sellers fraudulently concealed defects in the home and that the fraudulent concealment tolled the statute of repose and (2) the trial court’s failure to consider the new argument raised in Buyer’s Motion to Alter or Amend. Finding the trial court’s actions to be proper in all respects, we affirm the decision.
Opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/lockwoodk_042909.pdf
“The trial court found that the home was substantially completed on August 1, 1997, and, consequently, the negligent construction and substandard workmanship claim was barred by the statute of limitations since it was brought more than 5 years after the date of substantial completion.” Id.
“To toll the application of the statute of repose based on an allegation of fraudulent concealment, a plaintiff is required to prove the following: (1) that the defendant took affirmative action to conceal the cause of action or remained silent and failed to disclose material facts despite a duty to do so; (2) the plaintiff could not have discovered the cause of action despite exercising reasonable care and diligence; (3) knowledge on the part of the defendant of the facts giving rise to the cause of action; and (4) concealment of material information from the plaintiff. Shadrick v. Coker, 963 S.W.2d 726, 735 (Tenn. 1998). “The tolling doctrine of fraudulent concealment does not apply to cases where the court finds a plaintiff was aware or should have been aware of facts sufficient to put the plaintiff on notice that a specific injury has been sustained as a result of another’s negligent or wrongful conduct.” Id.
“Ms. Lockwood did not have the home inspected prior to closing; that she was aware of a water leak in the home’s basement in 1999; and that she contacted the Hughes when the water leak first appeared but did not inform them during the next three years of the continuing problem. These materials were sufficient to negate an essential element of Ms. Lockwood’s fraudulent concealment claim, viz., that she could not have discovered the cause of action despite exercising reasonable care and diligence.” Id.
Diminution of rental value may be used to determine loss of enjoyment of property
CLAYTON DYE, and wife, EVELYN DYE, v. HOWARD D. LIPPS, and wife, MARGARET L. LIPPS, and WILLIAM E. PHILLIPS, TRUSTEE OF A DEED OF TRUST SECURING THE CITIZENS BANK OF EAST TENNESSEE (Tenn. Ct. App. April 27, 2009).
Plaintiffs brought an action alleging defendants had created a nuisance on their property which damages plaintiffs’ adjoining property. Following an evidentiary hearing, the Trial Judge found a temporary nuisance existed and awarded damages to plaintiffs. Defendants appealed on the sole issue of the amount of damages. We affirm the Trial Court’s Judgment.
Opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/dyec_042709.pdf
“A review of Tennessee cases demonstrate that the most widely employed method of proving damages resulting from a temporary nuisance is to present evidence of the diminution in the rental value of the affected property during the duration of the nuisance. See Adair v. Scalf, No. M2001-00677-COA-R3-CV, 2003 WL 261932 at * 5 (Tenn. Ct. App. Feb. 7, 2003). However, diminution in rental value is not the only method to establish a plaintiff’s damages in a temporary nuisance case. The Tennessee Supreme Court in Lane v. W. J. Curry & Sons, 92 S.W.3d 355 (Tenn. 2002) discussed alternative measures of damages as follows:
A party who has been subjected to a private nuisance may be entitled to several types of remedies. A plaintiff may be entitled to injunctive relief, especially where the nuisance is likely to continue. Pate, 614 S.W.2d at 48. Further, in cases involving a temporary private nuisance, which is one that can be corrected, damages may be awarded for the cost of restoring the property to its pre-nuisance condition, as well as damages for inconvenience, emotional distress, and injury to the use and enjoyment of the property. ... The typical way of measuring injury to the use and enjoyment of the property is the decrease in rental value of the property while the nuisance existed. Id.; see also Pate, 614 S.W.2d at 48 (noting that the measure of damages is the “injury to the value of the use and enjoyment of the property, which is usually shown by evidence of the extent that the rental value of the property is diminished by the nuisance”). Accordingly, courts provide an appropriate remedy in the form of either damages or injunctive relief or both.” Id.
“Here, the Trial Court correctly observed that a decrease in rental value due to the nuisance, is the most commonly used measure of damages, but not the only way to measure loss of use and enjoyment of the property in a temporary nuisance case. The Trial Court’s determination on this issue is borne out by the Supreme Court’s decision in Lane that held that diminution of rental value was not the exclusive measure of loss of use and enjoyment when it used the words “typical” and “usually” in the above referenced quotation from Lane. Additionally, this Court has repeatedly stated that diminution of rental value may be used to determine loss of use and enjoyment of the property, implying that there are other methods by which the court may measure the loss. See Clabo v. Great American Resorts, Inc., 121 S.W.3d 668, p. 671 (Tenn. Ct. App. 2003). The Trial Court noted plaintiff’s testimony that he could not mow the portion of his property effected by the dam’s leakage and could not use that part of the property for any purpose, demonstrating that his use and enjoyment of his property had diminished significantly.” Id.
Plaintiffs brought an action alleging defendants had created a nuisance on their property which damages plaintiffs’ adjoining property. Following an evidentiary hearing, the Trial Judge found a temporary nuisance existed and awarded damages to plaintiffs. Defendants appealed on the sole issue of the amount of damages. We affirm the Trial Court’s Judgment.
Opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/dyec_042709.pdf
“A review of Tennessee cases demonstrate that the most widely employed method of proving damages resulting from a temporary nuisance is to present evidence of the diminution in the rental value of the affected property during the duration of the nuisance. See Adair v. Scalf, No. M2001-00677-COA-R3-CV, 2003 WL 261932 at * 5 (Tenn. Ct. App. Feb. 7, 2003). However, diminution in rental value is not the only method to establish a plaintiff’s damages in a temporary nuisance case. The Tennessee Supreme Court in Lane v. W. J. Curry & Sons, 92 S.W.3d 355 (Tenn. 2002) discussed alternative measures of damages as follows:
A party who has been subjected to a private nuisance may be entitled to several types of remedies. A plaintiff may be entitled to injunctive relief, especially where the nuisance is likely to continue. Pate, 614 S.W.2d at 48. Further, in cases involving a temporary private nuisance, which is one that can be corrected, damages may be awarded for the cost of restoring the property to its pre-nuisance condition, as well as damages for inconvenience, emotional distress, and injury to the use and enjoyment of the property. ... The typical way of measuring injury to the use and enjoyment of the property is the decrease in rental value of the property while the nuisance existed. Id.; see also Pate, 614 S.W.2d at 48 (noting that the measure of damages is the “injury to the value of the use and enjoyment of the property, which is usually shown by evidence of the extent that the rental value of the property is diminished by the nuisance”). Accordingly, courts provide an appropriate remedy in the form of either damages or injunctive relief or both.” Id.
“Here, the Trial Court correctly observed that a decrease in rental value due to the nuisance, is the most commonly used measure of damages, but not the only way to measure loss of use and enjoyment of the property in a temporary nuisance case. The Trial Court’s determination on this issue is borne out by the Supreme Court’s decision in Lane that held that diminution of rental value was not the exclusive measure of loss of use and enjoyment when it used the words “typical” and “usually” in the above referenced quotation from Lane. Additionally, this Court has repeatedly stated that diminution of rental value may be used to determine loss of use and enjoyment of the property, implying that there are other methods by which the court may measure the loss. See Clabo v. Great American Resorts, Inc., 121 S.W.3d 668, p. 671 (Tenn. Ct. App. 2003). The Trial Court noted plaintiff’s testimony that he could not mow the portion of his property effected by the dam’s leakage and could not use that part of the property for any purpose, demonstrating that his use and enjoyment of his property had diminished significantly.” Id.
Language in deed creating a life estate overrides conflicting technical language found elsewhere in the document
STEVE NEELEY v. ALMEDIA NEELEY (Tenn. Ct. App. April 22, 2009).
The only surviving child of the decedent filed this Complaint against the decedent’s surviving spouse to quiet title and for partition to real estate conveyed to his father in 1975. The plaintiff contends the 1975 deed conveyed a life estate to his father with the remainder interest to his father’s heirs in fee simple at his father’s death. The plaintiff’s father died in 2004, and it is undisputed that he was survived by only two heirs, the plaintiff and the defendant. The plaintiff contends that he and the defendant each own an undivided one-half interest in the property. The defendant, however, contends her husband acquired a fee simple interest in the property, after which she became a tenant by the entirety with her husband, and, therefore, she became the sole owner of the property at her husband’s death. The trial court found that the original deed granted the decedent a life estate with a remainder to his heirs in fee simple, that any subsequent conveyances by the decedent were subject to the decedent’s life interest, and that the decedent’s heirs acquired fee simple title upon the decedent’s death. On appeal, the defendant contends the trial court erred in finding the original conveyance merely granted her husband a life estate; she also contends the class of “heirs” within the conveyance is void as a violation of the Rule Against Perpetuities. We have determined, as the trial court did, that the original conveyance granted the decedent a life estate with a remainder to his heirs in fee simple, and that the conveyance did not violate the Rule Against Perpetuities. We, therefore, affirm the trial court’s ruling that fee simple title to the property passed upon the decedent’s death to his heirs, the plaintiff and the defendant, in equal shares.
Opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/neeleys_042209.pdf
“A deed is to be construed to effect the intention of the grantor. ... The intent of the grantor “is to be ascertained from a ‘consideration of the entire instrument, read in the light of the surrounding circumstances.’” Id. (quoting Thornton, 282 S.W.2d at 363). “[W]ords are to be construed as the grantor intended and not necessarily in their technical sense.” Id. “[I]n construing a deed, the intention of the grantor will be determined without resort to technical rules of construction such as division of the deed into its formal parts with certain parts prevailing over others if at all possible.” Id. ... The intention of the grantor is “ascertained by consideration of the entire instrument of conveyance.” Id. (quoting Lockett v. Thomas, 165 S.W.2d 375, 376 (Tenn. 1942)). As in construing a will, when construing a deed, “the Court is primarily concerned in trying to ascertain the intention of the parties.” Id. ... All of the provisions of a deed are to be considered together and the intention of the grantor of a deed is to “be ascertained from the entire document, not from separate parts thereof, if at all possible.” Id. ... " Id.
“Of all the technical words creating an estate, those creating a life estate are the most easily understood. Certainly they are more easily understood by a layman than the terms tenancy by the entirety, joint tenancy, fee-tail, etc. Therefore it is reasonable to assume that the import of the words life estate were [sic] understood by the grantor more so than the legal phrasing in the habendum and covenant clauses and the legal significance of the sentence following the description which, it is contended, creates a tenancy by the entirety.” Id.
The only surviving child of the decedent filed this Complaint against the decedent’s surviving spouse to quiet title and for partition to real estate conveyed to his father in 1975. The plaintiff contends the 1975 deed conveyed a life estate to his father with the remainder interest to his father’s heirs in fee simple at his father’s death. The plaintiff’s father died in 2004, and it is undisputed that he was survived by only two heirs, the plaintiff and the defendant. The plaintiff contends that he and the defendant each own an undivided one-half interest in the property. The defendant, however, contends her husband acquired a fee simple interest in the property, after which she became a tenant by the entirety with her husband, and, therefore, she became the sole owner of the property at her husband’s death. The trial court found that the original deed granted the decedent a life estate with a remainder to his heirs in fee simple, that any subsequent conveyances by the decedent were subject to the decedent’s life interest, and that the decedent’s heirs acquired fee simple title upon the decedent’s death. On appeal, the defendant contends the trial court erred in finding the original conveyance merely granted her husband a life estate; she also contends the class of “heirs” within the conveyance is void as a violation of the Rule Against Perpetuities. We have determined, as the trial court did, that the original conveyance granted the decedent a life estate with a remainder to his heirs in fee simple, and that the conveyance did not violate the Rule Against Perpetuities. We, therefore, affirm the trial court’s ruling that fee simple title to the property passed upon the decedent’s death to his heirs, the plaintiff and the defendant, in equal shares.
Opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/neeleys_042209.pdf
“A deed is to be construed to effect the intention of the grantor. ... The intent of the grantor “is to be ascertained from a ‘consideration of the entire instrument, read in the light of the surrounding circumstances.’” Id. (quoting Thornton, 282 S.W.2d at 363). “[W]ords are to be construed as the grantor intended and not necessarily in their technical sense.” Id. “[I]n construing a deed, the intention of the grantor will be determined without resort to technical rules of construction such as division of the deed into its formal parts with certain parts prevailing over others if at all possible.” Id. ... The intention of the grantor is “ascertained by consideration of the entire instrument of conveyance.” Id. (quoting Lockett v. Thomas, 165 S.W.2d 375, 376 (Tenn. 1942)). As in construing a will, when construing a deed, “the Court is primarily concerned in trying to ascertain the intention of the parties.” Id. ... All of the provisions of a deed are to be considered together and the intention of the grantor of a deed is to “be ascertained from the entire document, not from separate parts thereof, if at all possible.” Id. ... " Id.
“Of all the technical words creating an estate, those creating a life estate are the most easily understood. Certainly they are more easily understood by a layman than the terms tenancy by the entirety, joint tenancy, fee-tail, etc. Therefore it is reasonable to assume that the import of the words life estate were [sic] understood by the grantor more so than the legal phrasing in the habendum and covenant clauses and the legal significance of the sentence following the description which, it is contended, creates a tenancy by the entirety.” Id.
Contract claims have a 6-year statute of limitations, and the doctrine of unclean hands must relate specifically to the transaction
COLEMAN MANAGEMENT, INC. v. DAVID MEYER, JAMES W. RAYNER, RICHARD D. BAKER, ROSE McKEE, AND NCF ASSOCIATES (Tenn. Ct. App. April 22, 2009).
This is an action to recover a real estate commission. The defendants are the general partners of a partnership that owned a single asset, an apartment complex. In 1992, the partnership filed a reorganization petition in bankruptcy. The partnership hired the plaintiff real estate agency to sell the apartment complex while it was in bankruptcy. After a hearing to establish the value of the property, the bankruptcy court permitted the partnership to buy back the property for $9.8 million. Soon after the bankruptcy plan was confirmed, however, the partnership, through the plaintiff real estate agency, contracted to sell the property to a third party for $12.5 million. Upon discovering this, the bankruptcy court permitted the sale to the third party to take place for $12.5 million, but it ordered that the excess proceeds of the sale be placed in escrow. When the escrow funds were released, the plaintiff real estate agency did not receive its commission on the sale of the property. Consequently, the real estate agency filed this lawsuit against the general partners to recover its commission. The defendants filed a motion to dismiss based on the statute of limitations and on the equitable doctrine of “unclean hands.” The trial court denied the motion and awarded the plaintiff real estate agency the commission sought plus prejudgment interest. The defendants now appeal. We affirm, finding that the lawsuit was timely filed, that the trial court did not err in declining to apply the unclean hands doctrine, and that the trial court did not abuse its discretion in awarding prejudgment interest.
Opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/colemanmgmt_042209.pdf
"[T]he applicable statute of limitations for Coleman Management’s breach of contract claim is six years... A cause of action for breach of contract accrues on the date of the breach or when one party demonstrates a clear intention not to be bound by the contract.“Thus, the statute of limitations begins to run when a contracting party first knows or should know that the contract will not be performed.’ Id.
“The doctrine of unclean hands has been described as follows: The principle is general, and is one of the maxims of the Court, that he who comes into a Court of Equity asking its interposition in his behalf, must come with clean hands; and if it appear from the case made by him . . . that he has himself been guilty of unconscientious, inequitable, or immoral conduct, in and about the same matters whereof he complains of his adversary, or if his claim to relief grows out of, or depends upon, or is inseparably connected with his own prior fraud, he will be repelled at the threshold of the court.” Id.
“This is a legal and not an equitable claim, Coleman Management argues, and so the doctrine of “unclean hands” applies only if the unconscionable conduct arises out of the “particular transaction which is the subject of the litigation.” Metric Partners Growth Suite Investors, L.P. v. Nashville Lodging Co., 989 S.W.2d 700, 703 (Tenn. Ct. App. 1998). Here, in the absence of any proof of fraud with respect to the management agreement, the doctrine of “unclean hands” is not a valid defense.” Id.
“Simply stated, the court must decide whether the award of pre-judgment interest is fair, given the particular circumstances of the case. In reaching an equitable decision, a court must keep in mind that the purpose of awarding the interest is to fully compensate a plaintiff for the loss of the use of funds to which he or she was legally entitled, not to penalize the defendant for wrongdoing.” Id.
This is an action to recover a real estate commission. The defendants are the general partners of a partnership that owned a single asset, an apartment complex. In 1992, the partnership filed a reorganization petition in bankruptcy. The partnership hired the plaintiff real estate agency to sell the apartment complex while it was in bankruptcy. After a hearing to establish the value of the property, the bankruptcy court permitted the partnership to buy back the property for $9.8 million. Soon after the bankruptcy plan was confirmed, however, the partnership, through the plaintiff real estate agency, contracted to sell the property to a third party for $12.5 million. Upon discovering this, the bankruptcy court permitted the sale to the third party to take place for $12.5 million, but it ordered that the excess proceeds of the sale be placed in escrow. When the escrow funds were released, the plaintiff real estate agency did not receive its commission on the sale of the property. Consequently, the real estate agency filed this lawsuit against the general partners to recover its commission. The defendants filed a motion to dismiss based on the statute of limitations and on the equitable doctrine of “unclean hands.” The trial court denied the motion and awarded the plaintiff real estate agency the commission sought plus prejudgment interest. The defendants now appeal. We affirm, finding that the lawsuit was timely filed, that the trial court did not err in declining to apply the unclean hands doctrine, and that the trial court did not abuse its discretion in awarding prejudgment interest.
Opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/colemanmgmt_042209.pdf
"[T]he applicable statute of limitations for Coleman Management’s breach of contract claim is six years... A cause of action for breach of contract accrues on the date of the breach or when one party demonstrates a clear intention not to be bound by the contract.“Thus, the statute of limitations begins to run when a contracting party first knows or should know that the contract will not be performed.’ Id.
“The doctrine of unclean hands has been described as follows: The principle is general, and is one of the maxims of the Court, that he who comes into a Court of Equity asking its interposition in his behalf, must come with clean hands; and if it appear from the case made by him . . . that he has himself been guilty of unconscientious, inequitable, or immoral conduct, in and about the same matters whereof he complains of his adversary, or if his claim to relief grows out of, or depends upon, or is inseparably connected with his own prior fraud, he will be repelled at the threshold of the court.” Id.
“This is a legal and not an equitable claim, Coleman Management argues, and so the doctrine of “unclean hands” applies only if the unconscionable conduct arises out of the “particular transaction which is the subject of the litigation.” Metric Partners Growth Suite Investors, L.P. v. Nashville Lodging Co., 989 S.W.2d 700, 703 (Tenn. Ct. App. 1998). Here, in the absence of any proof of fraud with respect to the management agreement, the doctrine of “unclean hands” is not a valid defense.” Id.
“Simply stated, the court must decide whether the award of pre-judgment interest is fair, given the particular circumstances of the case. In reaching an equitable decision, a court must keep in mind that the purpose of awarding the interest is to fully compensate a plaintiff for the loss of the use of funds to which he or she was legally entitled, not to penalize the defendant for wrongdoing.” Id.
JACK COLLIER v. GREENBRIER DEVELOPERS, LLC, ET AL. (Tenn. Ct. App. April 16, 2009).
This case was filed under the Uniform Fraudulent Transfers Act, Tenn. Code Ann. section 66-3-101 et seq., seeking to void four quitclaim deeds that were filed in connection with a real estate transaction. The contract for the sale of real property was originally entered by and between the Appellant, who is the sole member of an LLC, and the Appellees. Appellant then assigned his interest in the contract to the LLC. The trial court granted Appellees' Tenn. R. Civ. P. 12.02(6) motion upon its finding that Appellant was in privity with the LLC and thus bound by the transaction. We reverse and remand.
This case was filed under the Uniform Fraudulent Transfers Act, Tenn. Code Ann. section 66-3-101 et seq., seeking to void four quitclaim deeds that were filed in connection with a real estate transaction. The contract for the sale of real property was originally entered by and between the Appellant, who is the sole member of an LLC, and the Appellees. Appellant then assigned his interest in the contract to the LLC. The trial court granted Appellees' Tenn. R. Civ. P. 12.02(6) motion upon its finding that Appellant was in privity with the LLC and thus bound by the transaction. We reverse and remand.
Subscribe to:
Posts (Atom)