Wednesday, October 14, 2009

Court holds that abutting property owners are entitled to ingress/egress use of abandoned city street

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

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

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

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

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

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

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

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
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

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
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
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
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
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
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
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
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
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
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
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
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
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
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