Wednesday, December 28, 2011

Court reviews whether a home owners' association properly amended its restrictive covenants to increase the amount of dues

GRAND VALLEY LAKES PROPERTY OWNERS ASSOCIATION, INC. v. DENNIS BURROW (Tenn. Ct. App. December 28, 2011)

Appellant, the owner of several lots in a subdivision managed and maintained by the Appellee home owners association, appeals the trial court's grant of summary judgment in favor of Appellee on the question of whether Appellant owed an increase in dues and fees on his lots, and the denial of his counter-claims for fraud, violation of the Tennessee Consumer Protection Act, outrageous conduct, and invalidity of the restrictive covenants on grounds that these causes of action were barred by the applicable statutes of limitation or the doctrine of laches.

We conclude that the Appellee followed the correct procedure in amending its restrictive covenants to increase the amount of dues. However, because the trial court did not make findings, as required by Tennessee Rule of Civil Procedure 56.04, concerning the grounds for its application of laches, we cannot review the question of whether Appellant's counter-claims were properly dismissed. Vacated and remanded.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/grandvalley_122811.pdf

Tuesday, December 27, 2011

Court reviews a case involving the alleged fraudulent concealment of flooding in a house that was sold by defendants

G. KENNETH CAMPBELL ET AL. v. JAMES E. HUDDLESTON ET AL. (Tenn. Ct. App. December 27, 2011)

James E. Huddleston and his wife, Patricia M. Huddleston ("the Sellers"), sold their house to G. Kenneth Campbell and his wife, Teresa J. Campbell ("the Buyers"). The Buyers inquired of the Sellers as to whether there had been flooding in the house. The Sellers disclosed that there had been one flood in the basement to a depth of six inches.

During the course of some later renovations, the Buyers became aware the Sellers had indicated, on a wall stud, that there had been a 1998 flood in the basement to a depth of 38 inches. They also learned the Sellers had made an insurance claim for another flood in 2003 that was nearly one-foot deep.

The Buyers filed this tort action sounding in fraudulent concealment and fraudulent misrepresentation. The Sellers filed a motion for summary judgment asserting that, since the Buyers were made aware of the one "six inch" flood, they could not have relied on the misrepresentations with respect to the full extent of the two flooding events. The trial court granted the motion and dismissed the case. The Buyers appeal. We vacate the order granting summary judgment and remand for further proceedings before a different trial judge.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/campbellg_122711.pdf

Monday, December 26, 2011

Court determines the existence of an easement

CHARLIE LEE INGRAM v. REBECCA AND RANDY WASSON (Tenn. Ct. App. December 22, 2011)

This appeal concerns the existence of an easement. The dispute between the two adjoining landowners began after the defendant landowners blocked the plaintiff neighboring landowner's access to a roadway crossing over the defendants' property. The plaintiff landowner filed this action seeking condemnation or a finding of an implied easement for access to the roadway over the defendants' property, arguing that his property was landlocked. Upon the admission into evidence of several affidavits, the trial court found both an easement implied from prior use and, in the alternative, an easement created by necessity. The defendant landowners now appeal. We affirm the decision of the trial court.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/ingramc_112211.pdf

Wednesday, December 21, 2011

Court reviews whether plantiff properly exercised its right to terminate a contract for the sale of real property

CAMERON GENERAL CONTRACTORS, INC. v. KINGSTON PIKE, LLC (Tenn. Ct. App. December 21, 2011)

Cameron General Contractors, Inc., a Nebraska corporation ("Cameron"), sued Kingston Pike, LLC, a Georgia limited liability company ("Kingston Pike"), for breach of a contract concerning the sale of real property located in Knoxville, Tennessee. Prior to trial, Cameron elected to exercise its contractual right to terminate the contract, and the case proceeded to trial on the issue of damages. After a bench trial, the Trial Court entered its order finding and holding, inter alia, that the contract did not limit Cameron to the return of its earnest money, and granting Cameron a judgment against Kingston Pike for damages in the amount of $872,418.22, plus attorney's fees of $137,656.56. Kingston Pike appeals to this Court. We find and hold that the contract at issue clearly and unambiguously provides that once Cameron chose to terminate the contract, Cameron's sole remedy for Kingston Pike's breach was a return of Cameron's earnest money deposit. We, therefore, reverse the Trial Court's October 28, 2010 order.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/cameron_122111.pdf

Court reviews whether plaintiffs were fraudulently induced to sign a sewer easement agreement with the City of Memphis

FRANCES SEWARD BENNETT and DON SEWARD v. CITY OF MEMPHIS (Tenn. Ct. App. December 21, 2011)

Plaintiffs sued the City of Memphis, claiming that they were fraudulently induced to sign a sewer easement agreement. The trial court granted summary judgment to the City of Memphis. We reverse and remand for further proceedings.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/bennettf_122111.pdf

Thursday, December 1, 2011

Court reviews a breach of contract claim against a landlord

JOHN RUFF v. REDDOCH MANAGEMENT, LLC, ET AL. (Tenn. Ct. App. December 1, 2011)

Tenant filed suit against his former landlord and the current owner of premises that tenant leased alleging, inter alia, breach of contract and violations of the Uniform Residential Landlord and Tenant Act. Trial court dismissed tenant's claim against the former landlord holding that the landlord was exempt from suit pursuant to Tenn. Code Ann. section 66-28-305. The court dismissed the claim against the current owner because tenant failed to comply with the fourteen day pre-suit notice requirement at Tenn. Code Ann. section 66-28-501(a). Finding no error, we affirm the trial court.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/ruffj_120111.pdf

Monday, November 28, 2011

Court reviews a nuisance lawsuit involving a loud Air Conditioning Condenser Unit

CHANDRA PEARSON v. VICTOR ROSS (Tenn. Ct. App. December 28, 2011)

This appeal involves a nuisance claim. The parties own adjoining homes in a neighborhood of zero-lot line homes. The defendant's air conditioning condenser unit is outside his home, between the parties' homes. The plaintiff filed this lawsuit against the defendant, alleging that the noise of the defendant's air conditioning unit constituted a nuisance, and seeking abatement of the nuisance, money damages, and injunctive relief. After a bench trial, the trial court held in favor of the defendant. The plaintiff now appeals. We affirm.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/pearsonc_122811.pdf

Thursday, November 17, 2011

Determination of Navigability and Ownership of Land Beneath a River

Determination of Navigability and Ownership of Land Beneath a River (TN Attorney General Opinions, November 17, 2011)

In this opinion, the Attorney General discussed the following questions:
1. When is a river legally deemed navigable, and how does such a determination affect ownership of the land beneath the river?
2. Assuming a river is deemed navigable by the U.S. Army Corps of Engineers, then is the river navigable in a legal sense?

Question 1
After discussing the applicable case law, the Attorney General concluded that whether a waterway is legally navigable is a question of fact to be determined by a jury. The AG states that the legal navigability of a waterway determines whether the land beneath the water may be privately owned--if the waterway is not legally navigable, the land beneath it may be privately owned, but if it is navigable, the bed of the waterway, to the low-water mark, is publicly owned by the State. However, the public maintains a right to "free and uninterrupted use" of the waterway for purposes of transportation and navigation even if a waterway is deemed non-navigable.

Question 2
With regards to the second question, the Attorney General refers to the Code of Federal Regulations, which states that determinations of navigability by the U.S. Army Corps of Engineers is binding on the Corps, but not on federal courts. He then refers to the Tennessee Court of Appeals' City of Murfreesboro v. Pierce Hardy Real Estate, Inc. case, which concludes that if the U.S. Army Corps of Engineers' decision cannot bind federal courts, it also cannot bind state courts. Thus, although the U.S. Army Corps of Engineers' determination of navigability can be considered by a jury, the jury is not bound by that determination and may find contrary to the Corps' determination.


The AG's opinion can be read in its entirety at:
http://www.tba2.org/tba_files/AG/2011/ag_11_75.pdf

Court reviews a mortgage priority dispute involving a scrivener's error on the deed of trust

ABN AMRO MORTGAGE GROUP, INC. v. SOUTHERN SECURITY FEDERAL CREDIT UNION (Tenn. Ct. App. November 17, 2011)

Appellant, the second mortgage holder on the subject property, appeals the trial court's determination that Appellee held a valid first mortgage on the property, when Appellee's mortgage was taken under a deed of trust that contained a scrivener's error that incorrectly identified the property's lot number.

The trial court held that: (1) the scrivener's error was not fatal to Appellant's deed of trust as the instrument otherwise clearly identified the property; (2) Appellant's mortgage was superior to Appellee's; and (3) Appellee's bid at Appellant's foreclosure sale created a valid contract, under which Appellee owed Appellant the purchase price. Finding no error, we affirm.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/abnamro_111711.pdf

Wednesday, October 26, 2011

Making Like-Kind Exchanges (1031) in Real Estate Used for Business or Investment

If you have real estate used for business or investment, you may exchange that property for another of “like kind” without recognizing a gain or loss under the tax codes. IRS Code Section 1031 provides for the exchange. There must be a “qualified intermediary” between the exchangers, a role that we are happy to perform at the Adams Law Firm. Please give us a call, if you are interested in learning more about this transaction.

Find more information at the IRS website: http://www.irs.gov/businesses/small/industries/article/0,,id=98491,00.html

Friday, September 30, 2011

Court determines the rightful owner of real property following the death of one of the tenants

RICHARD RHODEN v. DONALD D. RHODEN (Tenn. Ct. App. September 29, 2011)

This is an action for unlawful detainer. The property at issue was deeded to the plaintiff and his father "as tenants in common with the right of survivorship." For a time, the father, the plaintiff, and the plaintiff's brother all lived together on the property. The father died intestate. After the father's death, the plaintiff asked his brother to leave the property, and the brother refused. The plaintiff then filed this action against his brother for unlawful detainer, claiming that he was the sole owner of the property after their father's death based on his right of survivorship. After a bench trial, the trial court agreed and held in favor of the plaintiff. The brother now appeals. We affirm.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/rhodenr_092911.pdf

Thursday, September 29, 2011

Court reviews an action to recover litigation expenses in a case to quiet title to a portion of property

DAVID DAWSON JOHNSON v. MADISON COUNTY, TENNESSEE (Tenn. Ct. App. September 29, 2011)

Madison County allegedly erroneously mis-assigned and sold a portion of Appellant's property. Many years later, in 2006, Appellant learned of the alleged mistake and filed suit to quiet title against Madison County, two former owners, and the then-current property owner. In 2010, the matter was settled prior to trial, and the property was returned to Appellant. Appellant then filed suit against Madison County seeking to recover his litigation expenses incurred in the action to quiet title. The trial court, however, dismissed his claims as time-barred. We affirm.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/johnsond_092911.pdf

Wednesday, September 28, 2011

Court reviews the most appropriate equitable remedy for a parcel of land passed by a decedent to his heirs

WANDA LEAVER WILLIAMS ET AL. v. BRANDON LEAVER ET AL. (Tenn. Ct. App. September 28, 2011)

The trial court imposed a constructive trust on a six-acre parcel of real property to carry out the intent of the father that his son and daughter would divide the property. The court ordered the sale of the property and division of the proceeds. We have concluded that the more appropriate equitable remedy is a resulting trust and have modified the judgment with regard to the disposition of the sale proceeds. Otherwise, we affirm the result reached by the trial court.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/williamsw_092811.pdf

Tuesday, September 27, 2011

Court reviews whether a landlord had a duty under a commercial lease to repair a tenant's leaky roof

C.F. PROPERTY, LLC v. RACHEL SCOTT ET AL. (Tenn. Ct. App. September 27, 2011)

This is a landlord-tenant dispute involving commercial property with a known and disclosed "leaky roof." The lease states that the "property" is leased "as is where is." In an email sent prior to the execution of the lease, the landlord stated it would "talk about" repairing the roof after the first year. The leakage increased dramatically after the first year. The tenant began withholding rent.

The landlord filed an unlawful detainer action and the tenant filed a counterclaim for damages resulting from the leaky roof. A bench trial ensured. The court held that, by telling the tenant it would "talk about" repairing the roof, the landlord misrepresented that the roof was repairable when the landlord knew it could not be repaired, and that the landlord had a duty under the lease to repair the roof. The landlord appeals. We reverse the judgment and remand for a determination of the damages due the landlord under the lease.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/CFProperty_092711.pdf

Monday, September 19, 2011

Court reviews the enforceability of a purchase and sales agreement and who is liable for its breach

ROSS H. TARVER, et al., v. OCOEE LAND HOLDINGS, LLC., et al. (Tenn. Ct. App. September 19, 2011)

Plaintiffs sued defendants on a sale of real estate contract wherein defendants agreed to purchase certain real estate located in Polk County from plaintiffs for a stated price. Defendants joined issue on the pleadings in the trial before the Trial Judge.

The Trial Court held that the purchase and sales agreement was enforceable, and refused to find Ocoee Land Holdings, LLC liable for breach of the purchase and sales agreement, but held Glen Fetzner personally liable. Defendants and plaintiffs have appealed.

On appeal, we hold that the purchase and sales agreement was an enforceable contract, but the Court erred when it held Glen Fetzner personally liable for the breach of the purchase and sales agreement, and the Trial Court also erred when it did not find Ocoee Land Holdings, LLC liable for the breach of the contract. We enter Judgment against Ocoee Land Holdings, LLC.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/tarverr_091911.pdf

Tuesday, September 13, 2011

Court reviews the reformation of a lease agreement

TRACEY CHANDLER and KELLY WILSON v. CHARLESTON VOLUNTEER FIRE DEPARTMENT (Tenn. Ct. App. September 13, 2011)

The trial court reformed a lease agreement, finding certain terms had been erroneously transposed. Appellants contend the reformation was error. We affirm.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/chandlert_091311.pdf

Thursday, August 25, 2011

Court reviews whether several deeds of conveyance were fraudulent.

TABITHA LAYNE, ET AL. v. TYRON LAYNE ADKINS, ET AL. (Tenn. Ct. App. August 25, 2011)

Tabitha Layne, individually, and as Administratrix of the Estate of Freddie Steven Layne, and as Next Friend of Stephanie Layne and Teddy Layne ("Plaintiff") sued Tyron Layne Adkins, Kenneth Rowe, and a certain tract or parcel of Property Identified as Map #089, Parcel 060.01 ("the Property") alleging, in part, that Ms. Adkins and Mr. Rowe had committed fraud with regard to deeds of conveyance of the Property.

After a trial, the Trial Court entered its judgment finding and holding, inter alia, that four specific deeds with regard to the Property were void; that legal title to the Property is held by the heirs of Ted Layne with the Estate of Freddie Steven Layne holding title to one-third interest, Nancy Bolton Layne holding title to one-third interest, and Tyron Layne Adkins holding title to one-third interest; and awarding Mr. Rowe a judgment against Tyron Layne Adkins of $139,000 as a result of a cross-claim. Mr. Rowe appeals to this Court. We affirm.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/laynet_082511.pdf

Tuesday, August 16, 2011

Court reviews whether the Knoxville City Council can review the Board of Zoning Appeals's decisions.

ANITA J. CASH, CITY OF KNOXVILLE ZONING COORDINATOR, v. ED WHEELER (Tenn. Ct. App. August 16, 2011)

The City of Knoxville Board of Zoning Appeals granted defendant a variance and the Knoxville City Council then nullified the variance granted by the Board of Zoning Appeals. Defendant then appealed to the Chancery Court of Knox County contending that the city ordinance which permitted the City Council to review the decisions of the Board of Zoning Appeals was invalid, and the Chancellor agreed. On appeal, we hold that the ordinance at issue is valid under the State's statutory scheme. We reverse the Chancellor and remand for further proceedings.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/casha_081611.pdf

Thursday, August 11, 2011

Court reviews the boundary lines established by two different surveyors

GLENN CUPP ET AL. v. BILL HEATH ET AL. (Tenn. Ct. App. August 11, 2011)

In late 2007, the defendant Bill Heath built a fence on a line running generally east and west, said line having been established by surveyor Bill Parsons in 1990 and then re-staked in 2007 by surveyor Dennis Fultz. The plaintiff Glenn Cupp, an adjoining landowner to the south of Heath, hired surveyor Mark Comparoni to establish his northern line because Cupp believed Heath had built the fence much too far to the south. Marjorie Keck, who joins Heath on her northern boundary and Cupp on her western boundary, also commissioned Comparoni to survey her land. Comparoni's survey confirmed that Heath's new fence incorrectly encompassed approximately 35 acres of Cupp's land and approximately 6 acres of Keck's land. Cupp and Keck filed this action against Heath in 2008 to establish their northern boundary with Heath and the Cupp/Keck common boundary as surveyed by Comparoni. The trial court found that the Comparoni survey correctly established the boundary lines of all the parties. Heath appeals. We affirm.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/cuppg_081111.pdf

Monday, August 8, 2011

Court reviews claims of fraud and unjust enrichment against a defendant who defaulted on a loan

THE BANK OF NASHVILLE v. CHARLES CHIPMAN, SR., ET AL. (Tenn. Ct. App. August 8, 2011)

Defendant defaulted on a $300,000 loan from plaintiff bank. He subsequently renewed the loan but not before transferring certain assets to his wife. He never repaid the loan. The bank filed suit against the husband for breach of contract and fraud and against both defendants for fraudulent conveyance, conversion, civil conspiracy to defraud, and unjust enrichment. The bank also sought a lien lis pendens, a constructive trust, and a judicial sale and foreclosure.

The trial court found against the husband with respect to the bank's claims for breach of contract and fraud (in renewing the loan), against the wife for unjust enrichment, and against both defendants for fraudulent conveyance. The court denied the bank's request for a constructive trust and a judicial sale and foreclosure. The parties appeal the trial court's disposition of claims for fraud, civil conspiracy to defraud, and unjust enrichment, as well as its decision not to impose a constructive trust. We find for the bank on its fraud (against the husband) and unjust enrichment (against the wife) claims. We find against the bank on its claims for civil conspiracy to defraud and the imposition of a constructive trust.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/bankofnashville_080811.pdf

Thursday, August 4, 2011

Court reviews a zoning board's decision to deny a permissible use permit for rural property

JERRY KITTRELL v. WILSON COUNTY, TENNESSEE, ET AL. (Tenn. Ct. App. August 4, 2011)

The owner of a piece of rural property in Wilson County applied for a "permissible use" permit that would allow him to display vehicles for sale on the property. The County planning staff recommended against issuance of a permit, reasoning that the proposed use was not consistent with other uses permitted in an A-1 (agricultural) zoning district. The owner appealed to the Board of Zoning Appeals, which agreed to issue the permit, but limited the use to "no more than 10 serviceable items being on the property at any given time."

The owner challenged the limitation by filing a petition for writ of certiorari in the Wilson County Chancery Court. The court determined that the BZA had acted arbitrarily and had exceeded its authority by placing a condition on the owner's use of the property of a type not contemplated by the controlling ordinance, and it removed that condition. We affirm the removal of the condition, but we reverse the trial court's holding that the BZA had violated the property owner's substantive due process rights.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/kittrellj_080411.pdf

Monday, August 1, 2011

Land dispute impacts eminent domain cases

In the battle of land for Nashville's new convention center, the recusal of Judge Barbara Haynes seems to have been crucial. That, and a couple of Californians who have had a hand in changing the way eminent-domain cases are handled in Davidson County.

Read the full story at the Nashville Post's website.

Friday, July 29, 2011

Court reviews a case involving the default on an assumed mortgage

PAUL W. CHAMBERS v. FIRST VOLUNTEER BANK OF TENNESSEE (Tenn. Ct. App. July 29, 2011)

This case arises from a dispute over the repayment of a loan. Penny Chambers obtained a loan through a bank in order to buy a house. Penny Chambers defaulted on the loan. Paul W. Chambers ("Chambers"), Penny Chambers's husband, later assumed the mortgage.

Chambers allegedly defaulted and First Volunteer Bank of Tennessee ("the Bank") stated that it would foreclose if he did not cure the default. Chambers sued the Bank in the Chancery Court for Polk County ("the Trial Court").

The Trial Court granted the Bank's motion to dismiss. Chambers appeals. We find that the Trial Court did not err in granting the Bank's motion to dismiss. We further find that the Trial Court did not err in denying Chambers's motion to alter or amend and motion for default. The judgment of the Trial Court is affirmed.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/chambersp072911.pdf

Tuesday, July 26, 2011

Court Reviews a Case Involving a Boundary Dispute, Adverse Possession, and Laches

RICHARD L. HOLLOW, TRUSTEE v. BEULAH BUTLER, ET AL. (Tenn. Ct. App. July 26, 2011)

Richard L. Hollow, Trustee ("Plaintiff") sued Beulah Butler with regard to a boundary line dispute. After a trial, the Trial Court entered its order finding and holding, inter alia, that the common boundary line between Plaintiff's real property and Ms. Butler's real property is as shown on a September 17, 2003 survey prepared by Plaintiff's surveyor, James Ogle, and that Ms. Butler had not proven adverse possession, laches, or gross laches. Ms. Butler appeals to this Court. We affirm.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/hollowr_072611.pdf

Thursday, July 14, 2011

Foreclosure activity down due to delays

Foreclosure activity in Tennessee declined 25 percent in the first half of the year compared to the first six months of 2010, according to a midyear report released today by RealtyTrac. Nationwide, foreclosure activity declined by 25 percent from the previous six months and 29 percent from the first half of 2010. According to the report, though, the decline is not a sign of a rallying economy, but due to processing delays. RealtyTrac estimates that because of the delays potentially one million foreclosures that should have occurred in 2011 will now happen in 2012 or later.

Read the fully story at the Memphis Business Journal's website

Wednesday, June 29, 2011

Court reviews citations issued against a property owner for failing to obtain permits

METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY, TENNESSEE v. RICHARD A. DEMONBREUN (Tenn. Ct. App. June 29, 2011)

Property owner seeks review of the trial court's decision that two citations were properly issued against him because he did not have a permit for hosting historic home events on his property as required by the Metropolitan Government. We affirm.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/demonbreunr_062911.pdf

Tuesday, June 28, 2011

Court reviews the termination of an injunction in a case involving secured parties

SENIOR HOUSING ALTERNATIVES, INC. v. BERNARD GLOBAL LOAN INVESTORS, LTD. (Tenn. Ct. App. June 28, 2011)

Senior Housing Alternatives, Inc. ("the Borrower") filed this action against Bernard Global Loan Investors, Ltd. ("the Secured Party") asking the trial court to enjoin the Secured Party from foreclosing on a deed of trust that secured several notes on which the Borrower had defaulted. In essence, the Borrower's complaint alleges that its original lender had defrauded the Borrower and inflated the balance owed on the notes and that the Secured Party had knowledge of the fraud when it took ownership of the notes and deed of trust. The complaint alleges that the merits of the case are at issue in a federal district court in Georgia.

Despite expressing reservations about the Borrower's ability to prevail on the merits, the trial court granted it a temporary injunction to preserve the status quo in an order entered February 15, 2010. The court noted that developments in the federal court action could affect the equities and set a hearing for August 13, 2010, to "review the entire matter." Two days before the hearing date, the Secured Party filed a brief, with supporting affidavits, asking the court to dissolve the injunction. The court heard proof at a status conference and thereafter issued a memorandum opinion explaining that it was dissolving the injunction because, among other things, the court did not believe the Borrower could prevail on the merits. The Borrower appeals from the order dissolving the injunction and dismissing the complaint. We affirm.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/seniorhousing_062811.pdf

Court reviews a boundary line dispute between adjacent property owners

MICHAEL C. DRESSLER ET AL. v. EDWARD BUFORD (Tenn. Ct. App. June 28, 2011)

This is an action to establish the common boundary line between adjacent property owners. Following a four-day bench trial, the trial court adopted Plaintiffs' survey to establish the parties' common boundary line. Defendant appeals arguing that the evidence preponderates against the trial court's findings. Finding the evidence does not preponderate against the trial court's numerous findings, we affirm.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/dresslerm_062811.pdf

Thursday, May 19, 2011

Court Reviews a Ruling to Prohibit Homeowners from Using their Property for Nonresidential Purposes

LONNIE E. ROBERTS, ET AL. v. CLAUDE RUSSELL BRIDGES a/k/a LEON RUSSELL, ET UX. (Tenn. Ct. App. May 18, 2011)

This appeal involves the enforcement of a restrictive covenant. A group of neighbors filed suit seeking permanently to enjoin a musician and his wife from using their property for nonresidential purposes. The trial court ruled in favor of the neighbors after a bench trial, prohibiting the homeowners from parking a tour bus, two panel trucks, and several employee vehicles on their property and ordering the homeowners to remove a portion of a parking lot and driveway built to accommodate the vehicles. The court later awarded discretionary costs to the neighbors. We reverse the grant of injunctive relief requiring the homeowners to remove a portion of the parking lot and driveway but affirm the trial court in all other respects.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/robertsl_051811.pdf

Sunday, May 15, 2011

Foreclosure publication requirements diminished

Legislation brought on behalf of the Tennessee Banker's Association--that would cut the number of times a notice of foreclosure would have to run in the newspaper from three to two--cleared what may be its last major hurdle when the Senate Judiciary Committee, by a vote of five to four recommended for passage SB1299/HB 1920. The action has preempted efforts by the Tennessee Bar Association to enact more comprehensive reforms in the foreclosure process.

Wednesday, May 4, 2011

Court Reviews Whether Plaintiff was Barred from Bringing Suit because Defendant was Presumptive Owner of Property at Issue

ELMER ELLIOTT, JR. v. PEARL ELLIOTT, ET AL. (Tenn. Ct. App. May 4, 2011)


The trial court granted summary judgment to defendants, finding that plaintiff was ousted from the property at issue, that defendant Pearl Elliott was the presumptive owner of the property due to recordation and payment of property taxes, and that plaintiff's suit was statutorily barred. We affirm.


Opinion available at:

http://www.tba2.org/tba_files/TCA/2011/elliote_050411.pdf

Monday, May 2, 2011

Court Reviews the Use of Real Property in a Common Interest Community

R. DOUGLAS HUGHES ET AL. v. NEW LIFE DEVELOPMENT CORPORATION ET AL. (Tenn. Ct. App. May 2, 2011)


In this dispute concerning the use of real property located in a common interest community, we have concluded that summary judgment based on the amendments to the restrictive covenants was not appropriate. We also find that the new owner has the authority to act as developer.


Opinion available at:

http://www.tba2.org/tba_files/TCA/2011/hughesr_050211.pdf

Court Reviews Whether Reliance on Plaintiffs’ Survey Expert was Proper in a Case Involving a Boundary Dispute

GARRETT RITTENBERRY ET AL. v. KEVIN PENNELL ET AL. (Tenn. Ct. App. May 2, 2011)

In this boundary dispute, the defendant property owners argue that the trial court erred in its reliance on the survey of the plaintiffs' expert and in concluding that the road in front of the plaintiffs' property is a public county road. We have determined that the evidence does not preponderate against the trial court's decision to credit the survey, but that the trial court erred in concluding that the disputed part of the road was a public county road. 


Opinion available at:

http://www.tba2.org/tba_files/TCA/2011/rittenberryg_050211.pdf

Court Reviews Whether Defendant Undertook a Reasonable Effort to Obtain a Loan

ELIZABETH C. WRIGHT, v. FREDERICO A. DIXON, III (Tenn. Ct. App. May 2, 2011)

In this action to enforce a contract for the sale of real estate against defendant buyer, the Trial Court held that defendant failed to make reasonable efforts to obtain a loan in accordance with the requirement to obtain a mortgage for 100% financing, and awarded damages to plaintiff for breach of the contract since the plaintiff had sold the property before trial.

On appeal, we hold that the evidence preponderates against the Trial Judge's finding that the defendant failed to put forth reasonable efforts to obtain a loan which was a condition in the contract for purchase of the property, and remand. 


Opinion available at:

http://www.tba2.org/tba_files/TCA/2011/wrighte_050211.pdf

Friday, April 29, 2011

Court Reviews Whether a Foreclosure was Wrongful

NORMAN LEE ROBINSON v. MERS, INC. ET AL. (Tenn. Ct. App. April 29, 2011)


This is an appeal by Norman Lee Robinson from a summary judgment granted against him and in favor of his lender, Citizens Bank, and GMAC Mortgage, LLC, the assignee of Robinson's secured note. Robinson filed this action against Citizens Bank and GMAC, as well as others, to stop what he alleged was a wrongful foreclosure. He also demanded compensatory and punitive damages.

The substance of the action is that the defendants should not be permitted to require Robinson to pay into escrow, funds that had been improperly refunded to him. The trial court held that Robinson was in default and that the foreclosure was not wrongful because, despite some dispute as to certain facts, there was no genuine dispute concerning the facts material to the outcome of this case. We affirm. 


Opinion available at:

http://www.tba2.org/tba_files/TCA/2011/robinsonn_042911.pdf

Wednesday, April 27, 2011

Court Reviews the Allocation of Debts and Expenses in a Case Involving the Dissolution of a Real Estate Partnership

T. VERNER SMITH v. JERRY F. GARDNER (Tenn. Ct. App. April 27, 2011)

This appeal involves a suit for dissolution of a real estate partnership. The defendant-appellee also filed several counterclaims against the plaintiff, who is an attorney. After a bench trial, the trial court dissolved the partnership and found that the defendant-appellant was liable for one-half of the partnership's debts and expenses. The court dismissed the counterclaims. We affirm.

Opinion available at:

http://www.tba2.org/tba_files/TCA/2011/smitht_042711.pdf

Friday, March 25, 2011

Court Reviews Whether Individual Defendants are Additional Lessees in a Case Involving the Breach of a Commercial Lease

ASSOCIATED SHOPPING CENTER PROPERTIES, LTD. v. EDWARD H. HODGE ET AL. (Tenn. Ct. App. March 23, 2011)

The issue in this commercial real estate lease dispute is whether the individual defendants are additional lessees and, thus, personally liable under the lease. Plaintiff, the lessor of retail space, filed this action against the three defendants when the limited liability company, Decor Fabrics, LLC, a lessee, breached the lease by failing to pay rent for the term of the lease. The individual defendants denied liability, asserting that Decor Fabrics, LLC, was the only lessee.

The trial court found that the lease unambiguously identifies each of the individual defendants as additional lessees and assessed damages against them for breach of the lease, including the plaintiff's attorneys fees. Only one of the defendants appealed. He asserts that the trial court erred by finding the lease unambiguous as to the identify of the lessee(s) and by failing to consider the parties' conduct to conclude that Decor Fabrics, LLC, was the only lessee. We affirm.

Opinion Available at:
http://www.tba2.org/tba_files/TCA/2011/hodgee_032311.pdf

Monday, March 14, 2011

Court Reviews Whether All Necessary Parties were Included in a Declaratory Judgment Action Regarding Interpretation of a Real Estate Purchase Contract

MICHAEL ADLER v. DOUBLE EAGLE PROPERTIES HOLDINGS, LLC v. AIRWAYS COMMONS, LLC (Tenn. Ct. App. March 14, 2011)

In this declaratory judgment action, the parties sought interpretation of a real estate purchase contract. The contract between the buyer and the seller provided for the assignment of all leases on the property and proration of rents to the buyer. The parties disputed whether these provisions contemplated a separate agreement between the seller and a third party. At the behest of the parties, the trial court construed both agreements and granted summary judgment to the buyer.

On appeal, we raise, sua sponte, the question of whether all necessary parties were before the trial court pursuant to Tenn. Code Ann. section 29-14-107(a) and Tenn. R. Civ. P. 19. After concluding that all necessary parties were not included in this action, we vacate the judgment of the trial court and remand for further proceedings consistent with this opinion.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/adlerm_031411.pdf