Friday, August 3, 2012

Court reviews whether adverse possession gave appellees title to a parcel of land

EUGENE WILKERSON v. CLAUDE B. McCOY, ET AL. (Tenn. Ct. App. July 26, 2012)

The appellees claim ownership to two tracts of land listed as parcels 4.00 and 4.01 on the Union County Tax Map. They assert ownership through adverse possession as a result of members of their family allegedly farming and paying taxes on the parcels since 1917. The appellant was a bona fide purchaser of parcel 4.00 in 2003. The appellees filed a complaint to quiet title to determine ownership of the land; the appellant countered with a complaint for a declaratory judgment. The trial court consolidated the actions and concluded that the appellees held title to the parcels by adverse possession. The appellant appeals. We reverse.

Opinion available at:
https://www.tba.org/sites/default/files/wilkerson.pdf

Thursday, July 26, 2012

Court reviews an administrative decision ordering the demolition of a house

EDWARD LEE CARRUTH v. CITY OF ETOWAH (Tenn. Ct. App. July 25, 2012)

The City of Etowah appeals a decision of the trial court leaving in place an injunction prohibiting the City from demolishing a house owned by the plaintiff, Edward Lee Carruth. The City’s Building Inspector, on behalf of the City, directed that the house be demolished. He acted pursuant to a city ordinance governing the clearing of unsafe structures.

Carruth filed a complaint seeking (1) judicial review of the administrative ruling or, in the alternative, (2) review by writ of certiorari. The trial court issued the writ and entered a temporary restraining order prohibiting the City from demolishing or otherwise destroying the house. Following a bench trial, the court found that (1) there was inadequate proof to sustain the City’s action; (2) Carruth did not receive a hearing from the City prior to the City’s action; (3) the City failed to make findings of fact, as required by statute, in support of its decision; and (4) the cost of repairing the house was less than fifty percent of its value. The City challenges each of the trial court’s determinations and it further challenges the trial court’s conduct of a hearing on a common-law writ of certiorari. Finding no reversible error, we affirm the trial court’s judgment.

Opinion available at:
https://www.tba.org/sites/default/files/carruthe_072512.pdf

Tuesday, July 17, 2012

Court reviews whether a landlord can be held in contempt for the actions of its tenant

SMITH COUNTY PLANNING COMMISSION v. CARVER TRUCKING, INC. (Tenn. Ct. App. July 12, 2012)

This appeal involves a contempt finding against a closely-held corporation. The defendant closely-held corporation owned real property located on a highway.

The trial court held that the corporation had violated zoning ordinances by maintaining and operating a trucking terminal and salvage yard in an unauthorized area. The trial court enjoined the corporation from maintaining a trucking terminal at this location and directed the corporation to remove junk from the property. The corporation then leased the property to a business associate who continued to operate a trucking terminal on the property and failed to remove the junk. A contempt petition was filed against the defendant corporation.

The trial court determined that the defendant corporation had violated the injunction and was in contempt of court. The defendant corporation now appeals, arguing that the corporation cannot be held in contempt for the actions of the tenant on the property. We affirm.

Opinion available at:
https://www.tba.org/sites/default/files/smithplanning_071212.pdf

Court reviews a case involving the foreclosure of real property

ROSHEAY RAGLAND and wife, THERESA RAGLAND v. OAKLAND DEPOSIT BANK (Tenn. Ct. App. July 12, 2012)

This appeal involves the foreclosure of real property owned by the Appellants. The Appellants filed a request for a temporary and permanent injunction, alleging that the Appellee bank that held the mortgage on the property had violated the Appellants’ rights.

After the Appellants testified at the temporary injunction hearing, the Bank moved for involuntary dismissal and the trial court dismissed the case. Both parties filed post-trial motions regarding possession of the subject property. The appellate record contains no record that either of these motions was adjudicated by the trial court. Accordingly, the judgment of the trial court is not final, and this Court lacks subject matter jurisdiction over this appeal. Dismissed and remanded.

Opinion available at:
https://www.tba.org/sites/default/files/raglandr_071212.pdf

Thursday, July 12, 2012

Court reviews whether a neighborhood association president's suit against the board that voted to oust him failed to state a claim upon which relief could be granted

BOBBY MacBRYAN GREEN v. JODI JONES, ET. AL. (Tenn. Ct. App. July 10, 2012)

A neighborhood association president, fearing that members conspired to improperly oust him at an upcoming meeting, filed suit, requesting declaratory relief regarding the proper procedure for removal of a president. Prior to a hearing, the members voted to remove him from office and filed a motion to dismiss, alleging that the complaint failed to state a claim upon which relief could be granted. The court dismissed the complaint and denied a subsequent motion to alter or amend its judgment. The president appeals. We affirm.

Opinion available at:
https://www.tba.org/sites/default/files/greenb_071012.pdf

Friday, July 6, 2012

Court reviews whether defendants breached a Real Estate Sales Agency Contract

PEGGY GIFFIN d/b/a RE/MAX REALTY CENTER, ET AL. v. ANTHONY SAWYER, ET AL. (Tenn. Ct. App. July 3, 2012)

Peggy Giffin d/b/a Re/Max Realty Center and Racia Futrell (collectively “Plaintiffs”) sued Anthony Sawyer and Hope Sawyer alleging, among other things, that the Sawyers had breached a real estate sales agency contract.

After a bench trial, the Trial Court entered its order finding and holding, inter alia, that the Sawyers did not breach the sales agency contract and that Plaintiffs were not entitled to collect a commission under the sales agency contract. Plaintiffs appeal to this Court. We find that the evidence does not preponderate against the Trial Court’s findings, and we affirm.

Opinion available at:
https://www.tba.org/sites/default/files/griffinp_070312.pdf

Tuesday, July 3, 2012

Court reviews whether a condominium association board candidate has a statutory right to see the ballots from an election

KENNETH J. SIGEL, M.D. v. THE MONARCH CONDOMINIUM ASSOCIATION, INC. (Tenn. Ct. App. June 20, 2012)

This appeal involves the release of ballots for a condominium association election. The plaintiff condominium owner was a candidate for a position on the board of directors for the defendant condominium association. After losing the election, the plaintiff condominium owner requested to audit the vote and see the other members’ written ballots. The condominium association provided a tally sheet reflecting the number of ballots cast for each candidate but declined to release the actual ballots.

The plaintiff then filed this lawsuit, contending that the condominium association had a statutory obligation to release the ballots to him. The plaintiff later filed a motion for summary judgment. The trial court denied the summary judgment motion and dismissed the lawsuit. The plaintiff condominium owner now appeals. We affirm, finding that the plaintiff condominium owner does not have a statutory right to see the association members’ written ballots.

Opinion available at:
https://www.tba.org/sites/default/files/sigelk_062912.pdf

Monday, July 2, 2012

Court reviews whether a mortgage company wrongfully foreclosed on the plaintiff's home

GEORGE CLAY, III., v. FIRST HORIZON HOME LOAN CORPORATION (Tenn. Ct. App. June 26, 2012)

Plaintiff sued defendant mortgage company that held a mortgage on his home, on which defendant foreclosed. Plaintiff's alleged cause of action was that defendant had received money from the U.S. Treasury pursuant to the Troubled Asset Relief Program, and that defendant failed to properly consider him for a home loan modification pursuant to the federal acts and regulations.

Defendant moved to dismiss for failure to state a cause of action and the Trial Court dismissed part of plaintiff's complaint, but denied defendant's motion as to plaintiff's third party beneficiary claim, the negligent implementation of the HAMP claim and the wrongful foreclosure claim. Defendant sought a Tenn. R. App. P. 9 appeal, which was granted by the Trial Court and this Court and we hold that under the federal acts and regulations, there was no provision for a private right of action claim, and reverse so much of the Trial Court's judgment that holds otherwise.

Opinion available at:
https://www.tba.org/sites/default/files/clayg_062612.pdf

Friday, June 29, 2012

Court reviews whether a buyer wrongfully refused to close on an agreement to purchase property

DAVID R. SEATON, ET AL. v. WISE PROPERTIES-TN, LLC (Tenn. Ct. App. June 22, 2012)

This appeal concerns a contract for the purchase and sale of property. The buyer refused to close pursuant to the terms of the contract and stopped payment on its earnest money check. The sellers brought an action for specific performance and breach of contract. The buyer alleged that the sellers breached the contract first. The trial court found in favor of the buyer, holding that because the sellers did not cause title to be examined ten days from the effective date of the contract, the buyer had a right to withdraw the earnest money payment. The sellers appeal. We affirm the judgment of the trial court.

Opinion available at:
https://www.tba.org/sites/default/files/seatond_062212.pdf

Thursday, June 28, 2012

Court reviews whether homeowners violated a previous court order that enjoined them from using sulfurous water to water their lawn

JEFFREY R. SMITH, ET AL. v. RICHARD GARVIN AND SERENA GARVIN (Tenn. Ct. App. June 20, 2012)

Homeowners in a subdivision used water from a sulfur well to water their lawn. Neighbors complained about the noxious odor, and when the Homeowners continued to use the sulfurous water, the neighbors sought and obtained an order permanently enjoining them from using their well for irrigation purposes.

Three years later the Homeowners began using the sulfur well to water their lawn again, and the neighbors filed a petition seeking to hold the Homeowners in contempt for violating the court’s order. The Homeowners filed a retaliatory complaint against the neighbors, and the neighbors sought Rule 11 sanctions for having to defend that action.

The trial court consolidated the hearing of the two motions, and following a hearing where testimony and documentary evidence were introduced, the court found the Homeowners had willfully violated the court’s order on at least nine occasions. The court also found the Homeowners’ action was filed in violation of Rule 11 and fined the Homeowners $1,000. The Homeowners appealed, claiming the two motions should not have been heard together and that the evidence did not support the court’s finding of willfulness beyond a reasonable doubt.

We conclude the court did not abuse its discretion in hearing the two motions in the same proceeding, and that the evidence was not insufficient for the court to have found the Homeowners guilty of willfully violating its earlier order beyond a reasonable doubt. We thus affirm the trial court’s judgment.

Opinion available at:
https://www.tba.org/sites/default/files/smithj_062012.pdf

Wednesday, June 27, 2012

Court reviews a case involving a request for specific performance for a Grant of Right of Way

SEVIER COUNTY BANK v. EILEEN M. DIMECO, ET AL. (Tenn. Ct. App. June 26, 2012)

Sevier County Bank (“the Bank”) sued Eileen M. DiMeco, CitiMortgage, Inc., and First American Title Company seeking specific performance with regard to a Grant of Right of Way and Agreement to Dedicate (“the Agreement”) concerning a right of way to be used as a public road. The Bank filed a motion for summary judgment and after a hearing the Trial Court granted the Bank summary judgment. Ms. DiMeco appeals to this Court. We find and hold that there are no genuine issues of material fact and that the Bank is entitled to summary judgment as a matter of law, and we affirm. We further find this appeal frivolous and award the Bank attorney’s fees on appeal.

Opinion available at:
https://www.tba.org/sites/default/files/seviercountybank_062612.pdf

Tuesday, June 26, 2012

Court reviews whether trial court properly dismissed a case involving an easement across a parcel of land

LYNN ROGERS v. JON ROACH, ET AL. (Tenn. Ct. App. June 20, 2012)

Landowner owns property that was once part of a single parcel of land. The only way she can access her property is over a gravel roadway approximately nine feet wide that crosses through her neighbors’ property. One of Landowner’s neighbors erected fence posts near the roadway that Landowner alleges interfere with her ability to pull her horse trailers back and forth to her property.

Landowner filed a complaint alleging she has the right to a forty foot easement across her neighbors’ property. After Landowner presented her proof at trial, Defendant neighbors moved for involuntary dismissal pursuant to Tenn. R. Civ. P. 41.02. The trial court dismissed Landowner’s complaint.

We reverse the dismissal as to the Landowner’s claim for interference with her use and enjoyment of the easement because she presented evidence to establish the elements of that claim. We also reverse the dismissal of the claim for damages resulting from the interference. Dismissal of the other claims by Landowner is affirmed. We remand this case for further proceedings.

Opinion available at:
https://www.tba.org/sites/default/files/rogersl_062012.pdf

Wednesday, June 20, 2012

Atlanta Journal-Constitution: Georgia Supreme Court finds for gated community owner in gator case

This week, the Supreme Court of Georgia ruled in favor of a gated community in a case involving the death of a woman who was attacked by an alligator. The woman's heirs argued that the community didn't undertake reasonable steps to prevent people from being attacked and killed by alligators on its property. However, the Court held that the woman had knowledge that alligators were present in the community and in nearby lagoons and therefore, she had as much knowledge as the community did. For this reason, they upheld the community's motion for summary judgment.

Read more about this story at the AJC's website.

Monday, June 18, 2012

Court reviews breach of contract, fraudulent inducement, and misrepresentation claims in a case involving the sale of real property

ROZBEH ZAIRE v. AMIR ROSHAN-FAR (Tenn. Ct. App. June 1, 2012)

This appeal arises out of a lawsuit in which plaintiff sought recovery on claims of fraudulent inducement, breach of contract, negligent misrepresentation, and intentional misrepresentation with respect to the purchase of real property; the trial court awarded judgment to plaintiff only on the claim for negligent misrepresentation only. Both parties appeal. We affirm the judgement in all respects.

Opinion available at:
https://www.tba.org/sites/default/files/zairer_060112.pdf

Thursday, June 14, 2012

Court reviews a request to rescind the sale of a subdivision lot

MICHAEL J. D’ALESSANDRO v. LAKE DEVELOPERS, II, LLC (Tenn. Ct. App. February 22, 2012>

In 2005, Plaintiff purchased a subdivision lot believing it could later be traded toward the purchase of a condominium. Because no condominiums had been built by 2010, Plaintiff filed suit, seeking to rescind the sale and to recover damages. The trial court rescinded the warranty deed and awarded Plaintiff a return of the purchase price, plus city and county taxes paid and prejudgment interest from the filing of his complaint. Finding no failure of consideration, we reverse the trial court’s rescission of the warranty deed and its damage awards. We affirm the trial court’s dismissal of Plaintiff’s breach of warranty, negligent misrepresentation, promissory fraud, and Tennessee Consumer Protection Act claims. All remaining issues are deemed either waived or pretermitted.

Opinion available at:
https://www.tba.org/sites/default/files/dalessandrom.pdf

Thursday, May 31, 2012

Court reviews an unlawful detainer action involving counterclaims of unlawful foreclosure practices

FEDERAL HOME LOAN MORTGAGE CORPORATION v. ALAN WILSEY AND SANDRA WILSEY (Tenn. Ct. App. May 21, 2012

This appeal involves an unlawful detainer action. After foreclosure, the defendants refused to leave the subject property. The plaintiff filed this unlawful detainer action against the defendants, and ultimately filed a motion for summary judgment. In response, the defendants, acting pro se, filed documents suggesting fraud and/or unlawful foreclosure practices. The defendants filed no evidence to support their claims and no other response to the plaintiff’s motion. The trial court granted summary judgment in favor of the plaintiff. The defendants now appeal. Discerning no error, we affirm the trial court’s decision.

Opinion available at:
https://www.tba.org/sites/default/files/federalhomeloan_052112.pdf

Tuesday, May 15, 2012

Court reviews whether a land surveyor can be held liable for damages incurred by sinkholes

BRIAN DALE, single; BRIAN LAWHORN and wife, PAMELA LAWHORN; and WILLIAM JENKINS and wife, ELAINE JENKINS v. B & J ENTERPRISES, ET AL. (tenn. Ct. App. May 10, 2012)

Homeowners filed this lawsuit against various individuals and entities shortly after purchasing their homes, when they discovered that their properties are affected by numerous sink holes. Original defendants identified a surveyor as a comparative tortfeasor, and the homeowners amended their complaint to add the surveyor as a defendant. The surveyor filed a motion to dismiss, arguing that the homeowners’ claims were barred by Tennessee Code Annotated section 28-3-114, which provides that all actions to recover damages against any person engaged in the practice of surveying for any deficiency, defect, omission, error or miscalculation shall be brought within four years from the date the survey is recorded on the plat, or else be forever barred. The trial court granted the motion to dismiss. Plaintiffs were subsequently granted permission by the trial court and this Court to pursue an interlocutory appeal. Finding that section 28-3-114 governs the homeowners’ claims, we affirm.

Opinion available at:
https://www.tba.org/sites/default/files/daleb_051012.pdf

Thursday, May 10, 2012

Court reviews an agreement that restricted the use of a roadway that provided access to property

TOMMY HINTON and wife, JEAN MARIE HINTON v. JERRY L. EDMONDS and wife, SUSAN D. EDMONDS (Tenn. Ct. App. May 7, 2012)

Adjoining property owners dispute the validity of an Agreement which placed restrictions upon a roadway across one property which provided access to the other property. The trial court, after making specific factual findings, found the Agreement invalid and non-binding upon the parties. We affirm the trial court’s factual findings as well as its ultimate determination of invalidity.

Opinion available at:
https://www.tba.org/sites/default/files/hintont_050712.pdf

Friday, April 20, 2012

Court reviews whether plaintiff sufficiently established a cause of action to entitle it to a mechanic's lien on the property.

HEFFERLIN + KRONENBERG ARCHITECTS, PLLC, v. CLP DEVELOPMENT, LLC, et al. (Tenn. Ct. App. April 9, 2012)

Plaintiff brought this action claiming, inter alia, that it was entitled to a mechanics' lien on the subject property. Defendant filed Motions to Dismiss, one ground being that the Complaint failed to state a cause of action. The Trial Court subsequently ruled that the Complaint did not establish a cause of action to entitle plaintiff to a lien on the property. Plaintiff has appealed and we hold that upon review of the Complaint, and applying the rules governing the test of the sufficiency of the allegations in the Complaint, that the Complaint states a cause of action. We vacate the Trial Court's Judgment and remand for further proceedings.

Opinion available at:
https://www.tba.org/sites/default/files/hefferlinpllc_040912.pdf

Court reviews whether purchaser provided an adequate reason for terminating a contract

BOURLAND, HEFLIN, ALVAREZ, MINOR & MATTHEWS, PLC v. RODNEY HEATON and MARGARET HEATON and LOEB PROPERTIES (Tenn. Ct. App. April 9, 2012)

The parties entered into a Contract for the sale and purchase of commercial real estate, and the purchaser deposited $50,000.00 earnest money. The purchaser terminated the Contract, citing the economic downturn and the purchaser’s resulting inability to secure retail tenants for its planned development. The parties disputed whether such termination was appropriate under the Contract, and thus, whether the purchaser was entitled to a return of its earnest money.

The trial court granted summary judgment in favor of the purchaser and further awarded the purchaser its attorney fees and expenses. We find the economic downturn did not provide an appropriate basis for termination of the Contract. Thus, we reverse the trial court’s grant of summary judgment to the purchaser, and we enter summary judgment in favor of the sellers. The sellers shall be awarded the $44,362.57 remaining in the escrow account, and the purchaser shall pay the sellers an additional $5,637.43, for a total of $50,000.00. Additionally, pursuant to the Contract, the sellers are awarded attorney fees and expenses incurred in both the trial court and in this Court, and we remand for a determination of such award.

Opinion available at:
https://www.tba.org/sites/default/files/bourlandheflin_040912.pdf

Tuesday, April 17, 2012

Tennessee Supreme Court determines whether a city's ordinance substantially interferes with a firework dealer's use of land

SNPCO, INC. v. CITY OF JEFFERSON CITY ET AL. (Tenn. March 26, 2012)

This appeal involves the question of whether a city’s ordinance banning the sale of fireworks within its city limits implicates Tenn. Code Ann. § 13-7-208(b) (Supp. 2008) which permits pre-existing nonconforming businesses to continue to operate despite a “zoning change.”

After the City of Jefferson City annexed the property on which a fireworks retailer’s business was located, the retailer filed suit in the Circuit Court for Jefferson County seeking compensation for a regulatory taking or, in the alternative, for a declaration that Tenn. Code Ann. § 13-7-208(b) permitted it to continue to sell fireworks.

The trial court dismissed the retailer’s complaint in accordance with Tenn. R. Civ. P. 12.02(6), and the Court of Appeals affirmed. SNPCO, Inc. v. City of Jefferson City, No. E2009-02355-COA-R3-CV, 2010 WL 4272744, at *11 (Tenn. Ct. App. Oct. 29, 2010). We granted the retailer’s Tenn. R. App. P. 11 application to clarify the application of the “substantial interference” test in Cherokee Country Club, Inc. v. City of Knoxville, 152 S.W.3d 466 (Tenn. 2004) to ordinances such as the one involved in this case.

We have determined that our decision in Cherokee Country Club, Inc. v. City of Knoxville requires consideration of both the terms and effects of the challenged ordinance. Thus, the courts must first determine whether the challenged ordinance relates to the city’s “general plan of zoning.” If the courts determine that the challenged ordinance relates to the city’s general plan of zoning, then, and only then, may the courts ascertain whether the ordinance results in a “substantial interference” with the use of land.

Based on this record, we have determined that Jefferson City’s challenged ordinance banning the sale of fireworks within its city limits is not related to the city’s general plan of zoning. Accordingly, we affirm the judgments of the courts below.

Opinion available at:
https://www.tba.org/sites/default/files/snpcoinc_032612.pdf

Wednesday, April 4, 2012

Court reviews whether members of a planning commission had conflicts of interest in a rezoning application

FRED H. GILLHAM v. CITY OF MT. PLEASANT, ET AL. (Tenn. Ct. App. March 30, 2012)

A residential property owner challenged the procedures used by a planning commission and city commission in granting a rezoning application submitted by two industrial companies. The companies asked that the zoning for 95.2 acres of land be changed from agricultural to special impact industrial for the purpose of developing a landfill to dispose of salt cake produced as a byproduct of their smelting businesses. The property owner also asserted that two of the commissioners had a conflict of interest and that their participation granting the application invalidated the procedure. The defendants filed a motion to dismiss and motion for judgment on the pleadings.

The trial court granted the defendants’ motions after concluding the planning commission and city commission complied with the procedural requirements of Tenn. Code Ann. §§13-7-203(a) and 6-20-215 and that the two commissioners had no conflict of interest since they had no ownership interest in the rezoning applicants. We affirm the trial court’s judgment dismissing the property owner’s complaint.

Opinion available at:
https://www.tba.org/sites/default/files/gillhamf_033012.pdf

Monday, April 2, 2012

Court Sides with Property Owners over EPA

The Supreme Court ruled unanimously that property owners have a right to prompt review of Environmental Protection Agency (EPA) compliance orders that block activities on lands determined to be protected.

In the case, an Idaho couple contested the EPA’s determination that their lot contained wetlands regulated by the Clean Water Act. They also complained there was no reasonable way to challenge that determination without risking fines that could mount quickly.

The court rejected EPA's argument that allowing judicial review would compromise the agency's ability to deal with water pollution, allowing the couple to contest the EPA’s determination in federal court.

Read the full story at the Knoxville News Sentinel website.

Sunday, April 1, 2012

Court reviews a claim to set aside a quitclaim deed

KATHRYN M. CLAIBORNE V. LARRY W. GOLDSTON (Tenn. Ct. App. March 28, 2012)

In this case, Kathryn M. Claiborne sought to set aside a quitclaim deed relating to property given to Larry W. Goldston. The trial court set aside the deed but awarded damages to Larry W. Goldston based upon his counterclaim for unjust enrichment. Kathryn M. Claiborne appeals. We affirm the judgment of the trial court as modified.

Opinion available at:
https://www.tba.org/sites/default/files/claibornek_032812.pdf

Friday, March 30, 2012

Court reviews whether a lease guarantor was entitled to an interpreter who was not his co-defendant

MOHINDER N. SUD, v. MAN KENG HO, a/k/a SIMON HO, et al. (Tenn. Ct. App. March 30, 2012)

The Trial Court held Man Keng Ho liable for unpaid rents on commercial property that Ho had leased from his landlord. Ho claimed against Soon Lee Pang, appellant, on the grounds that Pang was the guarantor on the lease. At the subsequent trial between Ho and Pang, Ho acting as an interpreter for Pang, the Trial Court entered Judgment against Pang for the full amount of the Judgment against Ho as guarantor under the terms of the lease.

Pang then filed a Rule 60 Motion seeking relief from the Judgment, principally on the grounds that he was entitled to an interpreter and the Trial Court erred in utilizing his co-defendant, who had an interest in the case, as Pang's interpreter. The Trial Court overruled the Rule 60 Motion and Pang appealed to this Court.

We hold that the Trial Court abused its discretion in not complying with Rules 41 and 42 of the Supreme Court of Tennessee, and remand for a retrial on the merits.

Opinion available at:
https://www.tba.org/sites/default/files/sudm_033012.pdf

Saturday, March 24, 2012

Court determines which of two deeds of trust has priority

EQUITY MORTGAGE FUNDING, INC. OF TENNESSEE ET AL. v. JOE BOB HAYNES (Tenn. Ct. App. March 21, 2012)

The issue in this case is which of two deeds of trust has priority. Deed of trust A was executed before deed of trust B was executed; A was also registered before B was registered, but after B was executed. We affirm the chancellor’s decision that A has priority over B and that equitable estoppel does not apply to change this result.

Opinion available at:
https://www.tba.org/sites/default/files/equitymortgage_032112.pdf

Wednesday, March 21, 2012

Court reviews the enforceability of a real estate sales contract

CASEY E. BEVANS v. RHONDA BURGESS ET AL. (Tenn. Ct. App. March 20, 2012)

Prospective buyer who signed real estate sales contract sued seller, seller’s real estate agent and broker, and the actual buyers for breach of contract, violation of the Tennessee Consumer Protection Act, and specific performance. The trial court granted summary judgment in favor of the defendants on the ground that there was no enforceable contract. We affirm.

Opinion available at:
https://www.tba.org/sites/default/files/bevansc_032012.pdf

Wednesday, March 14, 2012

Court reviews an award of deficiency damages following a foreclosure sale

COMMERCIAL BANK, INC. v. RAYMOND E. LACY (Tenn. Ct. App. March 14, 2012)

This appeal results from the grant of summary judgment in favor of Appellee bank. Appellant defaulted on promissory notes executed in favor of Appellee, resulting in a foreclosure sale. After the sale, a foreclosure deficiency existed. The trial court granted summary judgment in favor of the bank, awarding deficiency damages including amounts for unpaid taxes on the property. Appellant appeals. Discerning no error, we affirm.

Opinion available at:
https://www.tba.org/sites/default/files/lacyr_031412.pdf

Friday, February 24, 2012

Court reviews whether a re-zoned are was improperly classified due to "spot zoning"

ADELAIDA FIELDING ET AL. v. THE METROPOLITAN GOVERNMENT OF LYNCHBURG, MOORE COUNTY, TENNESSEE ET AL. (Tenn. Ct. App. February 1, 2012)

The plaintiffs filed this declaratory judgment action seeking to invalidate a re-zoning ordinance on the grounds that it constitutes illegal "spot zoning," and that the re-zoned area was improperly classified in violation of the local general zoning ordinance. The trial court upheld the re-zoning ordinance, finding it was enacted in furtherance of public safety goals and that the re-zoning classification was reasonable and rational. We affirm.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2012/fieldinga_020112.pdf

Tennessee Joins Agreement with Major Financial Institutions

Tennessee will participate in the $25 billion agreement with the nation’s five largest mortgage servicers, according to Attorney General Bob Cooper. The agreement arises from an investigation into unacceptable nationwide mortgage servicing and foreclosure practices. The servicers participating in this agreement, which was announced today, are Bank of America, J.P. Morgan Chase, Citi, GMAC/Ally Financial, and Wells Fargo.

Once approved by the court, the agreement will provide an estimated $146 million in relief to Tennessee homeowners and addresses future mortgage loan servicing practices.

“This agreement avoids protracted and costly litigation while providing significant and tangible relief to distressed homeowners,” said Cooper. “The benefits of this agreement today far outweigh the possible benefits that might be obtained after several years in court. Homeowners need the help now and an orderly resolution of these claims is in everyone’s interests.”

Read the full article at:
http://www.tba2.org/tbatoday/news/2012/mortgageagreement_020912.pdf

Friday, February 17, 2012

Court reviews a malicious prosecution case that arose out of a dispute between neighbors

JAMES COLEMAN v. LAUDERDALE COUNTY, TENNESSEE, ET AL. STEVE SANDERS, SHERIFF OF LAUDERDALE COUNTY; AND HARRY R. HOPKINS, JR., DEPUTY SHERIFF OF LAUDERDALE COUNTY (Tenn. Ct. App. February 15, 2012)

This is a malicious prosecution case arising out of a dispute between neighbors. A dispute arose when the plaintiff neighbor hired a tree service to trim the branches of a tree near the border between the two neighbors' properties. After a confrontation, the police were called. After they arrived, the police cited both neighbors on charges of disorderly conduct. After the charges against the plaintiff neighbor were dismissed, he filed this malicious prosecution action against the defendant county and two of the police officers involved. The trial court granted summary judgment in favor of the defendants. The plaintiff neighbor now appeals. We affirm.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2012/colemanj_021512.pdf

Wednesday, February 15, 2012

Lance Coleman: Hilton loses property tax exemption, ordered to pay $60,000 in back taxes (KNS)

Land the Airport Hilton sits on is exempt from property taxes, but a state judge has ruled the building out of which the business operates is not exempt, and that translates into about $30,000 a year the hotel now will be required to pay in property taxes.

Blount County Property Assessor Mike Morton announced the recent ruling affecting the Alcoa Highway hotel on Wednesday.

Administrative Law Judge Brook Thompson handed down the ruling resulting in Blount County receiving at least $30,000 in property taxes annually from the Hilton. Morton said he made the ruling public Wednesday because of the upcoming budget decisions for fiscal 2012-2013.

Full article located at: http://www.knoxnews.com/news/2012/feb/08/hilton-loses-property-tax-exemption-ordered-to/

Wednesday, February 8, 2012

Court reviews the award of an easement in a boundary line dispute

MICHAEL HONG v. LEROY FOUST, ET AL. (Tenn. Ct. App. February 8, 2012)

In this boundary line dispute, the defendants sought to claim property beyond a road known as "Creek Road." The trial court concluded that the road constituted the defendants' southern boundary.

However, because the plaintiff's complaint sought the adoption of a survey that conceded a small strip of land south of Creek Road to the defendants, along with the fact that the plaintiff testified that he believed that the defendants owned some property south of Creek Road, the trial court granted the defendants a strip alongside the road about four feet deep.

After the defendants moved to conform their pleading to the proof and sought relief under the doctrine of adverse possession, the trial court reopened the proof to consider adverse use. Another opinion was issued awarding the defendants a strip extending approximately ten feet from the southern edge of Creek Road. The defendants appeal. We affirm the findings of the trial court.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2012/hongm_020812.pdf

Monday, January 30, 2012

Court reviews a case involving real property subject to foreclosures and tax sales

TODD MARSH, ET AL. v. LARRY A. STORIE, ET AL. (Tenn. Ct. App. January 26, 2012)

Todd Marsh and Kari Marsh ("Plaintiffs") sued Larry A. Storie ("Storie") and First Tennessee Bank National Association ("First TN Bank") with regard to, among other things, ownership of real property which had been the subject of both a tax sale and a foreclosure sale. After a hearing, the Trial Court entered an order on January 4, 2011 granting partial summary judgment dismissing First TN Bank from the case, and certifying the judgment as final as to First TN Bank pursuant to Tenn. R. Civ. P. 54.02. Plaintiffs appeal the dismissal of their claims against First TN Bank. We affirm.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2012/marsht_012612.pdf

Friday, January 20, 2012

Court reviews a boundary line dispute between parties who hired their own surveyors

MARY LEE MARTIN v. S. DALE COPELAND (Tenn. Ct. App. January 20, 2012)

In this boundary line dispute, plaintiff sued defendant, the adjoining property owner, and defendant countersued. Each of the parties employed their own surveyors who testified at the trial, and the Trial Court ultimately established a boundary line between the parties. Defendant appealed to this Court. We affirm the Judgment of the Trial Court.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2012/martinn_013012.pdf

Monday, January 9, 2012

Court reviews a case involving the approval of a planned unit development

CK DEVELOPMENT, LLC v. TOWN OF NOLENSVILLE, ET AL. (Tenn. Ct. App. January 9, 2012)

The Developer of a Planned Unit Development in Nolensville sought final approval from the planning commission of phase 7 of the development. The planning commission conditioned its approval of the plan on the developer's agreement to construct the roads in phase 7 in accordance with more recent road standards that were adopted in 2007. The developer filed a petition for writ of certiorari claiming it had vested rights in the earlier road standards and that complying with the more rigorous standards would require it to spend more money than it had originally planned.

The trial court agreed with the developer and concluded that it had vested rights in the earlier road standards. The town appealed.

We reverse the trial court's decision because the developer did not rely on any final governmental approval, the application of the improved road standards was not a zoning change, and the developer has neither engaged in substantial construction of phase 7 nor incurred substantial liabilities with respect to phase 7. We also reject the developer's argument that the planning commission exceeded its jurisdiction by acting in a legislative rather than an administrative capacity when it determined the developer was required to comply with the 2007 road standards.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2012/ckdevelopment_010912.pdf

Friday, January 6, 2012

Court reviews whether the terms of a sublease makes the sublessee liable for paying property taxes

2850 PARKWAY GENERAL PARTNERSHIP, v. C. DAN SCOTT, et al. (Tenn. Ct. App. January 5, 2012)

Plaintiff brought an action for declaratory judgment, asking the Court to declare that while plaintiff's sublease required it to pay the property taxes, the master lease required the lessor to pay the property taxes, and asked the Court to declare the lessor liable for the property taxes. Following trial, the Trial Court declared that the sublessee was liable for the property taxes, as it agreed to pay under the sublease. On appeal, we affirm the Judgment of the Trial Court on the grounds that under the fact of this case, plaintiff is equitably estopped to avoid paying property taxes, as agreed to in the sublease.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2012/2850parkway_010512.pdf

Thursday, January 5, 2012

TN Supreme Court determines the proper procedure for obtaining judicial review of a local legislative body's land use decision under the Jackson Law

DAVE BRUNDAGE ET AL. v. CUMBERLAND COUNTY ET AL. (Tenn. December 19, 2011)

This appeal calls into question the proper procedure for obtaining judicial review of a local legislative body's land use decision under the "Jackson Law," Tenn. Code Ann. sections 68-211-701 to -707 (2011). The opponents of a coal ash landfill, approved by the Cumberland County Commission, filed a petition for a statutory writ of certiorari in the Chancery Court for Cumberland County seeking judicial review of the Commission's decision. The trial court dismissed the petition because it was not verified as required by Tenn. Code Ann. sections 27-8-106 (2000). The Court of Appeals affirmed. Brundage v. Cumberland Cnty., No. E2010- 00089-COA-R3-CV, 2010 WL 3025538, at *4 (Tenn. Ct. App. Aug. 4, 2010).

We granted the petitioners' application for permission to appeal because the Jackson Law does not specifically define the procedure for seeking judicial review of a local legislative body's decisions. We have determined (1) that a local legislative body's decision under the Jackson Law may be challenged either by a petition for a statutory writ of certiorari or by a complaint for declaratory judgment and (2) that the trial court and the Court of Appeals erred by failing to treat the statutory petition for writ of certiorari as a complaint for declaratory judgment.

Opinion available at:
http://www.tba2.org/tba_files/TSC/2011/brundaged_121911.pdf