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