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

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

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

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.

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

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

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

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

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

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

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

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

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.

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