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.

Opinion may be found at the TBA website:

http://www.tba2.org/tba_files/TCA/2009/starkst_061709.pdf

"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.

Opinion may be found at the TBA website:

http://www.tba2.org/tba_files/TCA/2009/construction_060909.pdf

"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/opinions/tca/PDF/083/RobnettOPN.pdf

"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/OPINIONS/Tca/PDF/084/kylejOPN.pdf

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.

Opinion may be found at the TBA website:

http://www.tba2.org/tba_files/TCA/2009/devereauxj_060509.pdf

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.

Opinion may be found at the TBA website:

http://www.tba2.org/tba_files/TCA/2009/hulls_060109.pdf

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.

Opinion may be found at the TBA website:

http://www.tba2.org/tba_files/TCA/2009/bryanj_060109.pdf

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.

Opinion may be found at the TBA website:

http://www.tba2.org/tba_files/TCA/2009/bethear_052909.pdf

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.

Opinion may be found at the TBA website:

http://www.tba2.org/tba_files/TCA/2009/vaughtd_052709.pdf

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.

The opinion may be found at the TBA website:

http://www.tba2.org/tba_files/TSC/2009/creecha_corr_052709.pdfTSC/2009/creecha_corr_052709.pdf