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