GEORGE H. NASON, INDIVIDUALLY & AS TRUSTEE OF THE CHURCH STREET REALTY TRUST v. C & S HEATING, AIR, & ELECTRICAL, INC. AND O’BRIEN HEATING & AIR, INC.
(Tenn. Ct. App. April 30, 2009).
Plaintiff appeals summary judgment granted on claims for breach of contract, unjust enrichment and entitlement to quantum meruit relief. The trial court dismissed the complaint based on the doctrine of collateral estoppel finding Plaintiff’s claims or rights to the same property were finally adjudicated in federal court. We affirm.
Opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/nasong_043009.pdf
“Collateral estoppel and its companion doctrine, res judicata, “promote finality in litigation in order to conserve judicial resources and to relieve litigants from the cost and vexation of multiple lawsuits.” State ex rel. Cihlar v. Crawford, 39 S.W.3d 172, 178 (Tenn. Ct. App. 2000). Although both legal principles have preclusionary effects, res judicata and collateral estoppel are not the same. Res judicata, or claim preclusion, bars a second suit on the same cause of action between the same parties and is inapplicable here. See Lee v. Hall, 790 S.W.2d 293, 294 (Tenn. Ct. App. 1990). Collateral estoppel, or issue preclusion, bars the same parties or their privies from relitigating in a second suit issues that were actually raised and determined in the former suit. Massengill v. Scott, 738 S.W.2d 629, 631 (Tenn. 1987); Crawford, 39 S.W.3d at 178-79. “Once an issue has been actually or necessarily determined by a court of competent jurisdiction, the doctrine of collateral estoppel renders that determination conclusive on the parties and their privies in subsequent litigation, even when the claims or causes of action are different.” Crawford, 39 S.W.3d at 178-79 (citing Massengill, 738 S.W.2d at 631). Collateral estoppel applies to issues of law and fact. Id. at 179. “The estoppel of a judgment or decree extends to all matters material to the decision of the case which the parties exercising reasonable diligence might have brought forward at the time. A plaintiff may not reserve a theory which supports his action for a second lawsuit.” Id. .
“A party defending on the basis of collateral estoppel has the burden of proving (1) that the issue to be precluded is identical to the issue decided in the first suit; (2) that the issue was actually litigated and decided on the merits in the first suit; (3) that the underlying judgment was final; (4) that the party against whom estoppel is asserted was a party or is in privity with a party to the first suit; and (5) that the party against whom estoppel is asserted had a full and fair opportunity to litigate the issue now sought to be precluded.”Id. .
Friday, June 5, 2009
Thursday, June 4, 2009
Court finds latent ambiguity in deed; allows parol evidence to show intent of the deed
RUTH M. COOPER, ET AL. v. KEVIN SMITH and NATHANIEL LINDER (Tenn. Ct. App. May 7, 2009).
Appellants filed this action for declaratory judgment asking the trial court to interpret a provision in a deed. The trial court concluded that the deed was unambiguous and did not allow Appellants to present parol evidence showing the grantor’s intent. We find that the deed contains a latent ambiguity and therefore reverse and remand this matter to the trial court.
Opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/cooperr_050709.pdf
"Parol evidence that adds to, varies, or contradicts the language of the deed is generally inadmissible. Parol evidence, however, may be admissible to remove a latent ambiguity in a deed; it is inadmissible to explain a patent ambiguity. Id. The Mitchell Court explained that “a patent ambiguity is one which appears on the face of the deed, while a latent ambiguity is one which is not discoverable from a perusal of the deed but which appears upon consideration of the extrinsic circumstances.” ‘ Id.
“In the present case, both parties agree that there was no entity or group known as “Wright Chapel Baptist Church” at the time the deed was executed. This is not apparent from simply examining the face of the deed. The ambiguity appears only after learning that “Wright Chapel Baptist Church” did not exist in 1969. The deed therefore contains a latent ambiguity, and Petitioners are entitled to present parol evidence to explain the meaning of the ambiguous term.” Id.
Appellants filed this action for declaratory judgment asking the trial court to interpret a provision in a deed. The trial court concluded that the deed was unambiguous and did not allow Appellants to present parol evidence showing the grantor’s intent. We find that the deed contains a latent ambiguity and therefore reverse and remand this matter to the trial court.
Opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/cooperr_050709.pdf
"Parol evidence that adds to, varies, or contradicts the language of the deed is generally inadmissible. Parol evidence, however, may be admissible to remove a latent ambiguity in a deed; it is inadmissible to explain a patent ambiguity. Id. The Mitchell Court explained that “a patent ambiguity is one which appears on the face of the deed, while a latent ambiguity is one which is not discoverable from a perusal of the deed but which appears upon consideration of the extrinsic circumstances.” ‘ Id.
“In the present case, both parties agree that there was no entity or group known as “Wright Chapel Baptist Church” at the time the deed was executed. This is not apparent from simply examining the face of the deed. The ambiguity appears only after learning that “Wright Chapel Baptist Church” did not exist in 1969. The deed therefore contains a latent ambiguity, and Petitioners are entitled to present parol evidence to explain the meaning of the ambiguous term.” Id.
Wednesday, June 3, 2009
Absent owners not given notice that hearing would involve demolition of house; court cannot use contempt power to authorize demolition
CITY OF FRANKLIN, TENNESSEE v. PEGGY HUNTER ET AL. (Tenn. Ct. App. May 6, 2009).
Property owners appeal an order authorizing the City of Franklin to demolish a house on their property. Because we have determined that the procedure used by the city did not comply with due process, we reverse.
Opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/city_of_franklin_050709.pdf
“The hearing at which the court gave the city the authority to demolish the Hunters’ property was a hearing on a fourth contempt motion. In light of the posture of the case and the manner in which this action arose, the Hunters had no notice that the hearing on September 20, 2007, would involve a request by the city for permission to demolish their property. Rather, the issue before the court was whether the Hunters were in contempt for failing to comply with the court’s previous order. The city did not file any pleadings to have the property declared a nuisance or to request authority to have the property demolished.” Id.
“The city argues that it essentially amended its pleadings at the hearing when it asked the court for permission to demolish the property and the Hunters failed to object. Tenn. R. Civ. P. 15.02 authorizes amendment of the pleadings to conform with the proof if additional issues are “tried by express or implied consent of the parties.” This theory does not work here, however, because the Hunters were not present at the point when the city raised the issue of demolition and there is nothing in the record to suggest that they impliedly consented to the determination of that issue.” Id.
“A court’s contempt powers can be used to compel obedience to its orders and to punish those who willfully disobey those orders. See Tenn. Code Ann. §§ 16-1-102 and 29-9-102. We know of no authority, and the city cites none, under which a court is empowered to order the demolition of a house as a punishment for contempt of an order requiring inspection and repair of the house. Even if a court might have such authority under some circumstances, the due process concerns discussed above would prohibit the imposition of such a remedy when the litigant had no notice that such a penalty was being requested.” Id.
Property owners appeal an order authorizing the City of Franklin to demolish a house on their property. Because we have determined that the procedure used by the city did not comply with due process, we reverse.
Opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/city_of_franklin_050709.pdf
“The hearing at which the court gave the city the authority to demolish the Hunters’ property was a hearing on a fourth contempt motion. In light of the posture of the case and the manner in which this action arose, the Hunters had no notice that the hearing on September 20, 2007, would involve a request by the city for permission to demolish their property. Rather, the issue before the court was whether the Hunters were in contempt for failing to comply with the court’s previous order. The city did not file any pleadings to have the property declared a nuisance or to request authority to have the property demolished.” Id.
“The city argues that it essentially amended its pleadings at the hearing when it asked the court for permission to demolish the property and the Hunters failed to object. Tenn. R. Civ. P. 15.02 authorizes amendment of the pleadings to conform with the proof if additional issues are “tried by express or implied consent of the parties.” This theory does not work here, however, because the Hunters were not present at the point when the city raised the issue of demolition and there is nothing in the record to suggest that they impliedly consented to the determination of that issue.” Id.
“A court’s contempt powers can be used to compel obedience to its orders and to punish those who willfully disobey those orders. See Tenn. Code Ann. §§ 16-1-102 and 29-9-102. We know of no authority, and the city cites none, under which a court is empowered to order the demolition of a house as a punishment for contempt of an order requiring inspection and repair of the house. Even if a court might have such authority under some circumstances, the due process concerns discussed above would prohibit the imposition of such a remedy when the litigant had no notice that such a penalty was being requested.” Id.
Tennessee Landowners ma purchase real property sold to pat delinquent taxes
HOME FUNDS DIRECT, A California Corporation/Delinquent Taxpayers v. William Garrett (Tenn. Ct. App. May 5, 2009).
This case involves the right to redeem property purchased at a tax sale. The trial court confirmed the petitioner’s right to redeem the property, divested title from the purchaser, and vested title in the original owners. The purchaser appeals. We affirm.
Opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/homefundsd_0500509.pdf
“In order to redeem property under these statutes, three requirements must be satisfied. State v. Burns, No. 01A01-9604-CH-00178, 1996 WL 668347, at *6 (Tenn. Ct. App. Nov. 20, 1996) perm. app. denied (Tenn. Apr. 7, 1997). First, Tennessee Code Annotated section 67-5-2701 outlines who may redeem the property. The statute provides that a “‘person entitled to redeem property’ includes any person who owns a legal or equitable interest in the property sold at the tax sale and creditors of the taxpayer having a lien on the property[.]” Tenn. Code Ann. § 67-5- 2701(a) (2006). Second, the person redeeming the property must pay “moneys to the clerk as required by § 67-5-2703 within one (1) year from the date the property was sold, as evidenced by the order of confirmation” entered by the trial court. Tenn. Code Ann. § 67-5-2702(a) (2006) (emphasis added). Third, the amount paid to the clerk must equal the sum of the following values: (1) “the amount paid for the delinquent taxes, interest and penalties,” (2) “court costs and any court ordered charges,” and (3) “interest at the rate of ten percent (10%) per annum computed from the date of the sale on the entire purchase price paid at the tax sale.” Tenn. Code Ann. § 67-5-2703 (2006); see also Burns, 1996 WL 668347, at *6. “In the event the purchaser expended additional funds during the redemption period, Tenn. Code Ann. § 67-5-2704 provides a procedure for recouping these funds[.]” Id.
This case involves the right to redeem property purchased at a tax sale. The trial court confirmed the petitioner’s right to redeem the property, divested title from the purchaser, and vested title in the original owners. The purchaser appeals. We affirm.
Opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/homefundsd_0500509.pdf
“In order to redeem property under these statutes, three requirements must be satisfied. State v. Burns, No. 01A01-9604-CH-00178, 1996 WL 668347, at *6 (Tenn. Ct. App. Nov. 20, 1996) perm. app. denied (Tenn. Apr. 7, 1997). First, Tennessee Code Annotated section 67-5-2701 outlines who may redeem the property. The statute provides that a “‘person entitled to redeem property’ includes any person who owns a legal or equitable interest in the property sold at the tax sale and creditors of the taxpayer having a lien on the property[.]” Tenn. Code Ann. § 67-5- 2701(a) (2006). Second, the person redeeming the property must pay “moneys to the clerk as required by § 67-5-2703 within one (1) year from the date the property was sold, as evidenced by the order of confirmation” entered by the trial court. Tenn. Code Ann. § 67-5-2702(a) (2006) (emphasis added). Third, the amount paid to the clerk must equal the sum of the following values: (1) “the amount paid for the delinquent taxes, interest and penalties,” (2) “court costs and any court ordered charges,” and (3) “interest at the rate of ten percent (10%) per annum computed from the date of the sale on the entire purchase price paid at the tax sale.” Tenn. Code Ann. § 67-5-2703 (2006); see also Burns, 1996 WL 668347, at *6. “In the event the purchaser expended additional funds during the redemption period, Tenn. Code Ann. § 67-5-2704 provides a procedure for recouping these funds[.]” Id.
Statute of repose bars construction claims brought too late; disclosure rule does not apply when claimant should have discovered the defect
KAYE LOCKWOOD v. RONALD G. HUGHES, ET AL. (Tenn. Ct. App. April 29, 2009).
Buyer of home filed complaint against Sellers for, among other things, violation of the Tennessee Consumer Protection Act (“TCPA”). The trial court granted summary judgment to Sellers on the TCPA claim on the ground that it was barred by the statute of repose. Buyer filed a Motion to Alter or Amend the Judgment, raising a new argument, which the trial court denied. On appeal, Buyer challenges: (1) the trial court’s grant of summary judgment, asserting that material facts were in dispute regarding Buyer’s allegation that Sellers fraudulently concealed defects in the home and that the fraudulent concealment tolled the statute of repose and (2) the trial court’s failure to consider the new argument raised in Buyer’s Motion to Alter or Amend. Finding the trial court’s actions to be proper in all respects, we affirm the decision.
Opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/lockwoodk_042909.pdf
“The trial court found that the home was substantially completed on August 1, 1997, and, consequently, the negligent construction and substandard workmanship claim was barred by the statute of limitations since it was brought more than 5 years after the date of substantial completion.” Id.
“To toll the application of the statute of repose based on an allegation of fraudulent concealment, a plaintiff is required to prove the following: (1) that the defendant took affirmative action to conceal the cause of action or remained silent and failed to disclose material facts despite a duty to do so; (2) the plaintiff could not have discovered the cause of action despite exercising reasonable care and diligence; (3) knowledge on the part of the defendant of the facts giving rise to the cause of action; and (4) concealment of material information from the plaintiff. Shadrick v. Coker, 963 S.W.2d 726, 735 (Tenn. 1998). “The tolling doctrine of fraudulent concealment does not apply to cases where the court finds a plaintiff was aware or should have been aware of facts sufficient to put the plaintiff on notice that a specific injury has been sustained as a result of another’s negligent or wrongful conduct.” Id.
“Ms. Lockwood did not have the home inspected prior to closing; that she was aware of a water leak in the home’s basement in 1999; and that she contacted the Hughes when the water leak first appeared but did not inform them during the next three years of the continuing problem. These materials were sufficient to negate an essential element of Ms. Lockwood’s fraudulent concealment claim, viz., that she could not have discovered the cause of action despite exercising reasonable care and diligence.” Id.
Buyer of home filed complaint against Sellers for, among other things, violation of the Tennessee Consumer Protection Act (“TCPA”). The trial court granted summary judgment to Sellers on the TCPA claim on the ground that it was barred by the statute of repose. Buyer filed a Motion to Alter or Amend the Judgment, raising a new argument, which the trial court denied. On appeal, Buyer challenges: (1) the trial court’s grant of summary judgment, asserting that material facts were in dispute regarding Buyer’s allegation that Sellers fraudulently concealed defects in the home and that the fraudulent concealment tolled the statute of repose and (2) the trial court’s failure to consider the new argument raised in Buyer’s Motion to Alter or Amend. Finding the trial court’s actions to be proper in all respects, we affirm the decision.
Opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/lockwoodk_042909.pdf
“The trial court found that the home was substantially completed on August 1, 1997, and, consequently, the negligent construction and substandard workmanship claim was barred by the statute of limitations since it was brought more than 5 years after the date of substantial completion.” Id.
“To toll the application of the statute of repose based on an allegation of fraudulent concealment, a plaintiff is required to prove the following: (1) that the defendant took affirmative action to conceal the cause of action or remained silent and failed to disclose material facts despite a duty to do so; (2) the plaintiff could not have discovered the cause of action despite exercising reasonable care and diligence; (3) knowledge on the part of the defendant of the facts giving rise to the cause of action; and (4) concealment of material information from the plaintiff. Shadrick v. Coker, 963 S.W.2d 726, 735 (Tenn. 1998). “The tolling doctrine of fraudulent concealment does not apply to cases where the court finds a plaintiff was aware or should have been aware of facts sufficient to put the plaintiff on notice that a specific injury has been sustained as a result of another’s negligent or wrongful conduct.” Id.
“Ms. Lockwood did not have the home inspected prior to closing; that she was aware of a water leak in the home’s basement in 1999; and that she contacted the Hughes when the water leak first appeared but did not inform them during the next three years of the continuing problem. These materials were sufficient to negate an essential element of Ms. Lockwood’s fraudulent concealment claim, viz., that she could not have discovered the cause of action despite exercising reasonable care and diligence.” Id.
Diminution of rental value may be used to determine loss of enjoyment of property
CLAYTON DYE, and wife, EVELYN DYE, v. HOWARD D. LIPPS, and wife, MARGARET L. LIPPS, and WILLIAM E. PHILLIPS, TRUSTEE OF A DEED OF TRUST SECURING THE CITIZENS BANK OF EAST TENNESSEE (Tenn. Ct. App. April 27, 2009).
Plaintiffs brought an action alleging defendants had created a nuisance on their property which damages plaintiffs’ adjoining property. Following an evidentiary hearing, the Trial Judge found a temporary nuisance existed and awarded damages to plaintiffs. Defendants appealed on the sole issue of the amount of damages. We affirm the Trial Court’s Judgment.
Opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/dyec_042709.pdf
“A review of Tennessee cases demonstrate that the most widely employed method of proving damages resulting from a temporary nuisance is to present evidence of the diminution in the rental value of the affected property during the duration of the nuisance. See Adair v. Scalf, No. M2001-00677-COA-R3-CV, 2003 WL 261932 at * 5 (Tenn. Ct. App. Feb. 7, 2003). However, diminution in rental value is not the only method to establish a plaintiff’s damages in a temporary nuisance case. The Tennessee Supreme Court in Lane v. W. J. Curry & Sons, 92 S.W.3d 355 (Tenn. 2002) discussed alternative measures of damages as follows:
A party who has been subjected to a private nuisance may be entitled to several types of remedies. A plaintiff may be entitled to injunctive relief, especially where the nuisance is likely to continue. Pate, 614 S.W.2d at 48. Further, in cases involving a temporary private nuisance, which is one that can be corrected, damages may be awarded for the cost of restoring the property to its pre-nuisance condition, as well as damages for inconvenience, emotional distress, and injury to the use and enjoyment of the property. ... The typical way of measuring injury to the use and enjoyment of the property is the decrease in rental value of the property while the nuisance existed. Id.; see also Pate, 614 S.W.2d at 48 (noting that the measure of damages is the “injury to the value of the use and enjoyment of the property, which is usually shown by evidence of the extent that the rental value of the property is diminished by the nuisance”). Accordingly, courts provide an appropriate remedy in the form of either damages or injunctive relief or both.” Id.
“Here, the Trial Court correctly observed that a decrease in rental value due to the nuisance, is the most commonly used measure of damages, but not the only way to measure loss of use and enjoyment of the property in a temporary nuisance case. The Trial Court’s determination on this issue is borne out by the Supreme Court’s decision in Lane that held that diminution of rental value was not the exclusive measure of loss of use and enjoyment when it used the words “typical” and “usually” in the above referenced quotation from Lane. Additionally, this Court has repeatedly stated that diminution of rental value may be used to determine loss of use and enjoyment of the property, implying that there are other methods by which the court may measure the loss. See Clabo v. Great American Resorts, Inc., 121 S.W.3d 668, p. 671 (Tenn. Ct. App. 2003). The Trial Court noted plaintiff’s testimony that he could not mow the portion of his property effected by the dam’s leakage and could not use that part of the property for any purpose, demonstrating that his use and enjoyment of his property had diminished significantly.” Id.
Plaintiffs brought an action alleging defendants had created a nuisance on their property which damages plaintiffs’ adjoining property. Following an evidentiary hearing, the Trial Judge found a temporary nuisance existed and awarded damages to plaintiffs. Defendants appealed on the sole issue of the amount of damages. We affirm the Trial Court’s Judgment.
Opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/dyec_042709.pdf
“A review of Tennessee cases demonstrate that the most widely employed method of proving damages resulting from a temporary nuisance is to present evidence of the diminution in the rental value of the affected property during the duration of the nuisance. See Adair v. Scalf, No. M2001-00677-COA-R3-CV, 2003 WL 261932 at * 5 (Tenn. Ct. App. Feb. 7, 2003). However, diminution in rental value is not the only method to establish a plaintiff’s damages in a temporary nuisance case. The Tennessee Supreme Court in Lane v. W. J. Curry & Sons, 92 S.W.3d 355 (Tenn. 2002) discussed alternative measures of damages as follows:
A party who has been subjected to a private nuisance may be entitled to several types of remedies. A plaintiff may be entitled to injunctive relief, especially where the nuisance is likely to continue. Pate, 614 S.W.2d at 48. Further, in cases involving a temporary private nuisance, which is one that can be corrected, damages may be awarded for the cost of restoring the property to its pre-nuisance condition, as well as damages for inconvenience, emotional distress, and injury to the use and enjoyment of the property. ... The typical way of measuring injury to the use and enjoyment of the property is the decrease in rental value of the property while the nuisance existed. Id.; see also Pate, 614 S.W.2d at 48 (noting that the measure of damages is the “injury to the value of the use and enjoyment of the property, which is usually shown by evidence of the extent that the rental value of the property is diminished by the nuisance”). Accordingly, courts provide an appropriate remedy in the form of either damages or injunctive relief or both.” Id.
“Here, the Trial Court correctly observed that a decrease in rental value due to the nuisance, is the most commonly used measure of damages, but not the only way to measure loss of use and enjoyment of the property in a temporary nuisance case. The Trial Court’s determination on this issue is borne out by the Supreme Court’s decision in Lane that held that diminution of rental value was not the exclusive measure of loss of use and enjoyment when it used the words “typical” and “usually” in the above referenced quotation from Lane. Additionally, this Court has repeatedly stated that diminution of rental value may be used to determine loss of use and enjoyment of the property, implying that there are other methods by which the court may measure the loss. See Clabo v. Great American Resorts, Inc., 121 S.W.3d 668, p. 671 (Tenn. Ct. App. 2003). The Trial Court noted plaintiff’s testimony that he could not mow the portion of his property effected by the dam’s leakage and could not use that part of the property for any purpose, demonstrating that his use and enjoyment of his property had diminished significantly.” Id.
Language in deed creating a life estate overrides conflicting technical language found elsewhere in the document
STEVE NEELEY v. ALMEDIA NEELEY (Tenn. Ct. App. April 22, 2009).
The only surviving child of the decedent filed this Complaint against the decedent’s surviving spouse to quiet title and for partition to real estate conveyed to his father in 1975. The plaintiff contends the 1975 deed conveyed a life estate to his father with the remainder interest to his father’s heirs in fee simple at his father’s death. The plaintiff’s father died in 2004, and it is undisputed that he was survived by only two heirs, the plaintiff and the defendant. The plaintiff contends that he and the defendant each own an undivided one-half interest in the property. The defendant, however, contends her husband acquired a fee simple interest in the property, after which she became a tenant by the entirety with her husband, and, therefore, she became the sole owner of the property at her husband’s death. The trial court found that the original deed granted the decedent a life estate with a remainder to his heirs in fee simple, that any subsequent conveyances by the decedent were subject to the decedent’s life interest, and that the decedent’s heirs acquired fee simple title upon the decedent’s death. On appeal, the defendant contends the trial court erred in finding the original conveyance merely granted her husband a life estate; she also contends the class of “heirs” within the conveyance is void as a violation of the Rule Against Perpetuities. We have determined, as the trial court did, that the original conveyance granted the decedent a life estate with a remainder to his heirs in fee simple, and that the conveyance did not violate the Rule Against Perpetuities. We, therefore, affirm the trial court’s ruling that fee simple title to the property passed upon the decedent’s death to his heirs, the plaintiff and the defendant, in equal shares.
Opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/neeleys_042209.pdf
“A deed is to be construed to effect the intention of the grantor. ... The intent of the grantor “is to be ascertained from a ‘consideration of the entire instrument, read in the light of the surrounding circumstances.’” Id. (quoting Thornton, 282 S.W.2d at 363). “[W]ords are to be construed as the grantor intended and not necessarily in their technical sense.” Id. “[I]n construing a deed, the intention of the grantor will be determined without resort to technical rules of construction such as division of the deed into its formal parts with certain parts prevailing over others if at all possible.” Id. ... The intention of the grantor is “ascertained by consideration of the entire instrument of conveyance.” Id. (quoting Lockett v. Thomas, 165 S.W.2d 375, 376 (Tenn. 1942)). As in construing a will, when construing a deed, “the Court is primarily concerned in trying to ascertain the intention of the parties.” Id. ... All of the provisions of a deed are to be considered together and the intention of the grantor of a deed is to “be ascertained from the entire document, not from separate parts thereof, if at all possible.” Id. ... " Id.
“Of all the technical words creating an estate, those creating a life estate are the most easily understood. Certainly they are more easily understood by a layman than the terms tenancy by the entirety, joint tenancy, fee-tail, etc. Therefore it is reasonable to assume that the import of the words life estate were [sic] understood by the grantor more so than the legal phrasing in the habendum and covenant clauses and the legal significance of the sentence following the description which, it is contended, creates a tenancy by the entirety.” Id.
The only surviving child of the decedent filed this Complaint against the decedent’s surviving spouse to quiet title and for partition to real estate conveyed to his father in 1975. The plaintiff contends the 1975 deed conveyed a life estate to his father with the remainder interest to his father’s heirs in fee simple at his father’s death. The plaintiff’s father died in 2004, and it is undisputed that he was survived by only two heirs, the plaintiff and the defendant. The plaintiff contends that he and the defendant each own an undivided one-half interest in the property. The defendant, however, contends her husband acquired a fee simple interest in the property, after which she became a tenant by the entirety with her husband, and, therefore, she became the sole owner of the property at her husband’s death. The trial court found that the original deed granted the decedent a life estate with a remainder to his heirs in fee simple, that any subsequent conveyances by the decedent were subject to the decedent’s life interest, and that the decedent’s heirs acquired fee simple title upon the decedent’s death. On appeal, the defendant contends the trial court erred in finding the original conveyance merely granted her husband a life estate; she also contends the class of “heirs” within the conveyance is void as a violation of the Rule Against Perpetuities. We have determined, as the trial court did, that the original conveyance granted the decedent a life estate with a remainder to his heirs in fee simple, and that the conveyance did not violate the Rule Against Perpetuities. We, therefore, affirm the trial court’s ruling that fee simple title to the property passed upon the decedent’s death to his heirs, the plaintiff and the defendant, in equal shares.
Opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/neeleys_042209.pdf
“A deed is to be construed to effect the intention of the grantor. ... The intent of the grantor “is to be ascertained from a ‘consideration of the entire instrument, read in the light of the surrounding circumstances.’” Id. (quoting Thornton, 282 S.W.2d at 363). “[W]ords are to be construed as the grantor intended and not necessarily in their technical sense.” Id. “[I]n construing a deed, the intention of the grantor will be determined without resort to technical rules of construction such as division of the deed into its formal parts with certain parts prevailing over others if at all possible.” Id. ... The intention of the grantor is “ascertained by consideration of the entire instrument of conveyance.” Id. (quoting Lockett v. Thomas, 165 S.W.2d 375, 376 (Tenn. 1942)). As in construing a will, when construing a deed, “the Court is primarily concerned in trying to ascertain the intention of the parties.” Id. ... All of the provisions of a deed are to be considered together and the intention of the grantor of a deed is to “be ascertained from the entire document, not from separate parts thereof, if at all possible.” Id. ... " Id.
“Of all the technical words creating an estate, those creating a life estate are the most easily understood. Certainly they are more easily understood by a layman than the terms tenancy by the entirety, joint tenancy, fee-tail, etc. Therefore it is reasonable to assume that the import of the words life estate were [sic] understood by the grantor more so than the legal phrasing in the habendum and covenant clauses and the legal significance of the sentence following the description which, it is contended, creates a tenancy by the entirety.” Id.
Contract claims have a 6-year statute of limitations, and the doctrine of unclean hands must relate specifically to the transaction
COLEMAN MANAGEMENT, INC. v. DAVID MEYER, JAMES W. RAYNER, RICHARD D. BAKER, ROSE McKEE, AND NCF ASSOCIATES (Tenn. Ct. App. April 22, 2009).
This is an action to recover a real estate commission. The defendants are the general partners of a partnership that owned a single asset, an apartment complex. In 1992, the partnership filed a reorganization petition in bankruptcy. The partnership hired the plaintiff real estate agency to sell the apartment complex while it was in bankruptcy. After a hearing to establish the value of the property, the bankruptcy court permitted the partnership to buy back the property for $9.8 million. Soon after the bankruptcy plan was confirmed, however, the partnership, through the plaintiff real estate agency, contracted to sell the property to a third party for $12.5 million. Upon discovering this, the bankruptcy court permitted the sale to the third party to take place for $12.5 million, but it ordered that the excess proceeds of the sale be placed in escrow. When the escrow funds were released, the plaintiff real estate agency did not receive its commission on the sale of the property. Consequently, the real estate agency filed this lawsuit against the general partners to recover its commission. The defendants filed a motion to dismiss based on the statute of limitations and on the equitable doctrine of “unclean hands.” The trial court denied the motion and awarded the plaintiff real estate agency the commission sought plus prejudgment interest. The defendants now appeal. We affirm, finding that the lawsuit was timely filed, that the trial court did not err in declining to apply the unclean hands doctrine, and that the trial court did not abuse its discretion in awarding prejudgment interest.
Opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/colemanmgmt_042209.pdf
"[T]he applicable statute of limitations for Coleman Management’s breach of contract claim is six years... A cause of action for breach of contract accrues on the date of the breach or when one party demonstrates a clear intention not to be bound by the contract.“Thus, the statute of limitations begins to run when a contracting party first knows or should know that the contract will not be performed.’ Id.
“The doctrine of unclean hands has been described as follows: The principle is general, and is one of the maxims of the Court, that he who comes into a Court of Equity asking its interposition in his behalf, must come with clean hands; and if it appear from the case made by him . . . that he has himself been guilty of unconscientious, inequitable, or immoral conduct, in and about the same matters whereof he complains of his adversary, or if his claim to relief grows out of, or depends upon, or is inseparably connected with his own prior fraud, he will be repelled at the threshold of the court.” Id.
“This is a legal and not an equitable claim, Coleman Management argues, and so the doctrine of “unclean hands” applies only if the unconscionable conduct arises out of the “particular transaction which is the subject of the litigation.” Metric Partners Growth Suite Investors, L.P. v. Nashville Lodging Co., 989 S.W.2d 700, 703 (Tenn. Ct. App. 1998). Here, in the absence of any proof of fraud with respect to the management agreement, the doctrine of “unclean hands” is not a valid defense.” Id.
“Simply stated, the court must decide whether the award of pre-judgment interest is fair, given the particular circumstances of the case. In reaching an equitable decision, a court must keep in mind that the purpose of awarding the interest is to fully compensate a plaintiff for the loss of the use of funds to which he or she was legally entitled, not to penalize the defendant for wrongdoing.” Id.
This is an action to recover a real estate commission. The defendants are the general partners of a partnership that owned a single asset, an apartment complex. In 1992, the partnership filed a reorganization petition in bankruptcy. The partnership hired the plaintiff real estate agency to sell the apartment complex while it was in bankruptcy. After a hearing to establish the value of the property, the bankruptcy court permitted the partnership to buy back the property for $9.8 million. Soon after the bankruptcy plan was confirmed, however, the partnership, through the plaintiff real estate agency, contracted to sell the property to a third party for $12.5 million. Upon discovering this, the bankruptcy court permitted the sale to the third party to take place for $12.5 million, but it ordered that the excess proceeds of the sale be placed in escrow. When the escrow funds were released, the plaintiff real estate agency did not receive its commission on the sale of the property. Consequently, the real estate agency filed this lawsuit against the general partners to recover its commission. The defendants filed a motion to dismiss based on the statute of limitations and on the equitable doctrine of “unclean hands.” The trial court denied the motion and awarded the plaintiff real estate agency the commission sought plus prejudgment interest. The defendants now appeal. We affirm, finding that the lawsuit was timely filed, that the trial court did not err in declining to apply the unclean hands doctrine, and that the trial court did not abuse its discretion in awarding prejudgment interest.
Opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/colemanmgmt_042209.pdf
"[T]he applicable statute of limitations for Coleman Management’s breach of contract claim is six years... A cause of action for breach of contract accrues on the date of the breach or when one party demonstrates a clear intention not to be bound by the contract.“Thus, the statute of limitations begins to run when a contracting party first knows or should know that the contract will not be performed.’ Id.
“The doctrine of unclean hands has been described as follows: The principle is general, and is one of the maxims of the Court, that he who comes into a Court of Equity asking its interposition in his behalf, must come with clean hands; and if it appear from the case made by him . . . that he has himself been guilty of unconscientious, inequitable, or immoral conduct, in and about the same matters whereof he complains of his adversary, or if his claim to relief grows out of, or depends upon, or is inseparably connected with his own prior fraud, he will be repelled at the threshold of the court.” Id.
“This is a legal and not an equitable claim, Coleman Management argues, and so the doctrine of “unclean hands” applies only if the unconscionable conduct arises out of the “particular transaction which is the subject of the litigation.” Metric Partners Growth Suite Investors, L.P. v. Nashville Lodging Co., 989 S.W.2d 700, 703 (Tenn. Ct. App. 1998). Here, in the absence of any proof of fraud with respect to the management agreement, the doctrine of “unclean hands” is not a valid defense.” Id.
“Simply stated, the court must decide whether the award of pre-judgment interest is fair, given the particular circumstances of the case. In reaching an equitable decision, a court must keep in mind that the purpose of awarding the interest is to fully compensate a plaintiff for the loss of the use of funds to which he or she was legally entitled, not to penalize the defendant for wrongdoing.” Id.
JACK COLLIER v. GREENBRIER DEVELOPERS, LLC, ET AL. (Tenn. Ct. App. April 16, 2009).
This case was filed under the Uniform Fraudulent Transfers Act, Tenn. Code Ann. section 66-3-101 et seq., seeking to void four quitclaim deeds that were filed in connection with a real estate transaction. The contract for the sale of real property was originally entered by and between the Appellant, who is the sole member of an LLC, and the Appellees. Appellant then assigned his interest in the contract to the LLC. The trial court granted Appellees' Tenn. R. Civ. P. 12.02(6) motion upon its finding that Appellant was in privity with the LLC and thus bound by the transaction. We reverse and remand.
This case was filed under the Uniform Fraudulent Transfers Act, Tenn. Code Ann. section 66-3-101 et seq., seeking to void four quitclaim deeds that were filed in connection with a real estate transaction. The contract for the sale of real property was originally entered by and between the Appellant, who is the sole member of an LLC, and the Appellees. Appellant then assigned his interest in the contract to the LLC. The trial court granted Appellees' Tenn. R. Civ. P. 12.02(6) motion upon its finding that Appellant was in privity with the LLC and thus bound by the transaction. We reverse and remand.
Order for motion to set aside satisfaction of judgment did not adjudicate all claims; therefore not a final order
GRAND VALLEY LAKES PROPERTY OWNERS’ ASSOCIATION, INC. v. HAROLD R. GUNN AND PATSY R. GUNN (Tenn. Ct. App. April 13, 2009).
This is an appeal from the grant of a voluntary dismissal. The plaintiff homeowners’ association sued the defendants in general sessions court for dues owed. The homeowners’ association was awarded a judgment. The defendants appealed to the circuit court below, seeking a de novo hearing. For several years, the appeal remained pending with no activity. In the meantime, the defendants sold the subject property. The judgment due to the homeowners’ association was paid by the purchaser of the subject property to remove any cloud on the title. Having been paid, the homeowners’ association filed a notice of satisfaction of judgment in the circuit court. The defendants filed a motion to set aside the satisfaction of judgment. The circuit court entered an order dismissing the defendants’ appeal. The circuit court later denied the defendants’ motion to set aside the satisfaction of judgment. From that order, the defendants now appeal. We find that the circuit court order is not final and appealable. Therefore, we dismiss the defendants’ appeal for lack of jurisdiction.
Opinion may be found at the TBA website: http://www.tba2.org/tba_files/TCA/2009/grandvalleylakes_041309.pdf
“The Gunns’ notice of appeal was filed within thirty days of the circuit court’s May 12, 2008 order. In the May 12 order, however, the circuit court did not resolve Grand Valley’s request for attorney’s fees contained in Grand Valley’s response to the Gunns’ motion to set aside the satisfaction of judgment. As we have stated, except as otherwise permitted in Rule 9 and in Rule 54.02, an order adjudicating fewer than all the claims of the parties is not a final, appealable order. Tenn. R. App. P. 3(a); Tenn. R. Civ. P. 54.02. Because the trial court did not resolve this issue in the May 12, 2008 order, the order is not final and appealable.” Id.
This is an appeal from the grant of a voluntary dismissal. The plaintiff homeowners’ association sued the defendants in general sessions court for dues owed. The homeowners’ association was awarded a judgment. The defendants appealed to the circuit court below, seeking a de novo hearing. For several years, the appeal remained pending with no activity. In the meantime, the defendants sold the subject property. The judgment due to the homeowners’ association was paid by the purchaser of the subject property to remove any cloud on the title. Having been paid, the homeowners’ association filed a notice of satisfaction of judgment in the circuit court. The defendants filed a motion to set aside the satisfaction of judgment. The circuit court entered an order dismissing the defendants’ appeal. The circuit court later denied the defendants’ motion to set aside the satisfaction of judgment. From that order, the defendants now appeal. We find that the circuit court order is not final and appealable. Therefore, we dismiss the defendants’ appeal for lack of jurisdiction.
Opinion may be found at the TBA website: http://www.tba2.org/tba_files/TCA/2009/grandvalleylakes_041309.pdf
“The Gunns’ notice of appeal was filed within thirty days of the circuit court’s May 12, 2008 order. In the May 12 order, however, the circuit court did not resolve Grand Valley’s request for attorney’s fees contained in Grand Valley’s response to the Gunns’ motion to set aside the satisfaction of judgment. As we have stated, except as otherwise permitted in Rule 9 and in Rule 54.02, an order adjudicating fewer than all the claims of the parties is not a final, appealable order. Tenn. R. App. P. 3(a); Tenn. R. Civ. P. 54.02. Because the trial court did not resolve this issue in the May 12, 2008 order, the order is not final and appealable.” Id.
Courts finds that mother possessed requisite mental capacity for power of attorney; no undue influence; subsequent sale to step-daughter was upheld
BILLY DICKSON, JR. v. DANNELLA LONG, ET AL. (Tenn. Ct. App. April 9, 2009).
Son brought action to set aside the conveyance of real property from his mother to her step-daughter pursuant to the powers granted in a limited power of attorney naming mother’s step-son as attorney- in-fact. Son alleged that his mother did not possess the requisite mental capacity to sign the power of attorney and was unduly influenced by the step-daughter in signing the power of attorney. The trial court upheld the validity of the power of attorney and subsequent conveyance, finding mother possessed the requisite mental capacity to sign the power of attorney and step-daughter exerted no undue influence over mother to sign the power of attorney. Finding no reversible error, we affirm.
Opinion may be found at the TBA website: http://www.tba2.org/tba_files/TCA/2009/dicksonb_040909.pdf
“We also do not find that the apparent errors in the power of attorney referencing Irvin Cage and Ms. Long as Ms. Cage’s children prove the alleged mental incompetence of Ms. Cage. The trial court found that the power of attorney was prepared at the request of Pam Crosby of First Union National Bank and drafted by the Bank’s legal counsel. Ms. Cage’s power of attorney mirrored that executed by her husband on the same day. As Irvin Cage and Dannella Long were the children of Dorris Cage, the fact that the power of attorney signed by Ms. Cage identified her step-children as her children demonstrates only that the person who prepared the power was not aware of the precise family relationship of the parties. We do not find the existence of the errors or the fact that Ms. Cage signed a power of attorney referring to her step-children of more than a decade as her children, or even “only other child,” is not “clear, cogent and convincing proof,” [t]hat on October 17, 1996, Ms. Cage did not understand the nature, extent, character and effect of the transaction.” Id.
Son brought action to set aside the conveyance of real property from his mother to her step-daughter pursuant to the powers granted in a limited power of attorney naming mother’s step-son as attorney- in-fact. Son alleged that his mother did not possess the requisite mental capacity to sign the power of attorney and was unduly influenced by the step-daughter in signing the power of attorney. The trial court upheld the validity of the power of attorney and subsequent conveyance, finding mother possessed the requisite mental capacity to sign the power of attorney and step-daughter exerted no undue influence over mother to sign the power of attorney. Finding no reversible error, we affirm.
Opinion may be found at the TBA website: http://www.tba2.org/tba_files/TCA/2009/dicksonb_040909.pdf
“We also do not find that the apparent errors in the power of attorney referencing Irvin Cage and Ms. Long as Ms. Cage’s children prove the alleged mental incompetence of Ms. Cage. The trial court found that the power of attorney was prepared at the request of Pam Crosby of First Union National Bank and drafted by the Bank’s legal counsel. Ms. Cage’s power of attorney mirrored that executed by her husband on the same day. As Irvin Cage and Dannella Long were the children of Dorris Cage, the fact that the power of attorney signed by Ms. Cage identified her step-children as her children demonstrates only that the person who prepared the power was not aware of the precise family relationship of the parties. We do not find the existence of the errors or the fact that Ms. Cage signed a power of attorney referring to her step-children of more than a decade as her children, or even “only other child,” is not “clear, cogent and convincing proof,” [t]hat on October 17, 1996, Ms. Cage did not understand the nature, extent, character and effect of the transaction.” Id.
Tuesday, June 2, 2009
Farm pasture used as airstrip not prohibited by zoning regulations
HARRY ASKEY, ET AL. v. MAURY COUNTY BOARD OF ZONING APPEALS, AN ADMINISTRATIVE BODY FORMED UNDER THE LAWS OF THE STATE OF TENNESSEE AND MAURY COUNTY, TENNESSEE (Tenn. Ct. App. March 31, 2009)
A local zoning board found that use of a pasture as a private airstrip violated the applicable zoning restrictions. In an appeal by the landowner, the trial court found the board erred since the permitted use “recreational facility” applied to a private airstrip. We affirm the trial court.
Opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/askeyh_033109.pdf
“The A-2 zoning regulation by its terms allows the use. The A-2 zoning regulation allows use of the property for “recreational facilities” in Section 5.042(b)(9). It is not disputed that the Askeys use the airstrip for purely personal pursuits. The trial court noted that “recreational facilities” was not defined and looked to the definition of “recreational use” in Section 5.042 b. 9 which speaks in terms of a “facility” which is “intended for leisure time pursuits.” While this definition adds very little substantive meaning, it does not detract from, but adds to, the conclusion that the Askeys’ airstrip is a recreational facility. When the language of an ordinance is clear, the courts will enforce the ordinance as written. 421 Corporation v. Metropolitan Government of Nashville and Davidson County, 36 S.W.3d 469, 475 (Tenn. Ct. App. 2000). Consequently, based on the plain meaning of the words used in the ordinance, the Askeys’ use is permitted.” Id.
“In addition to the rules of statutory construction applicable to ordinances, there are also rules of construction that apply to zoning ordinances in particular. Courts must construe zoning ordinances “with some deference toward a property owner’s right to the free use of his or her property.” Lion’s Head, 968 S.W.2d at 301. This Court will seek to interpret a zoning ordinance in a way that is “most consistent with the ordinance’s general purposes,” but any ambiguity will be resolved “in favor of the property owner’s right to the unrestricted use of his or her property.” Id.
A local zoning board found that use of a pasture as a private airstrip violated the applicable zoning restrictions. In an appeal by the landowner, the trial court found the board erred since the permitted use “recreational facility” applied to a private airstrip. We affirm the trial court.
Opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/askeyh_033109.pdf
“The A-2 zoning regulation by its terms allows the use. The A-2 zoning regulation allows use of the property for “recreational facilities” in Section 5.042(b)(9). It is not disputed that the Askeys use the airstrip for purely personal pursuits. The trial court noted that “recreational facilities” was not defined and looked to the definition of “recreational use” in Section 5.042 b. 9 which speaks in terms of a “facility” which is “intended for leisure time pursuits.” While this definition adds very little substantive meaning, it does not detract from, but adds to, the conclusion that the Askeys’ airstrip is a recreational facility. When the language of an ordinance is clear, the courts will enforce the ordinance as written. 421 Corporation v. Metropolitan Government of Nashville and Davidson County, 36 S.W.3d 469, 475 (Tenn. Ct. App. 2000). Consequently, based on the plain meaning of the words used in the ordinance, the Askeys’ use is permitted.” Id.
“In addition to the rules of statutory construction applicable to ordinances, there are also rules of construction that apply to zoning ordinances in particular. Courts must construe zoning ordinances “with some deference toward a property owner’s right to the free use of his or her property.” Lion’s Head, 968 S.W.2d at 301. This Court will seek to interpret a zoning ordinance in a way that is “most consistent with the ordinance’s general purposes,” but any ambiguity will be resolved “in favor of the property owner’s right to the unrestricted use of his or her property.” Id.
Land owners are not liable for fraudulent misrepresentations made by real estate agents that are not a party to the lawsuit
ARTHUR CREECH ET AL. v. ROBERT R. ADDINGTON ET AL. (Tenn. March 31, 2009).
The eleven Plaintiffs, investors in a real estate development in Tunica, Mississippi, suffered losses when the financing for hotels on the tracts of land they had leased failed to materialize. Five of the Plaintiffs first learned of the investment opportunity in 1993 while attending a presentation by real estate agents Lloyd and Betty Link in Gatlinburg. After suit was filed against several Defendants based upon breach of oral and written contracts, the trial court entered an order of dismissal as to the Links and other of the Defendants and, later, granted a motion for summary judgment in favor of D.C. Parker and Richard Flowers, the owners of the land. When judgments had been entered as to all of the Defendants, the Plaintiffs appealed, but only as to Parker and Flowers. The Court of Appeals reversed, holding that whether an agency relationship existed between Parker and Flowers, as principals, and the Links, and whether the Links had been guilty of misrepresentation were disputed questions of fact. Upon remand, a jury found that the Links were the agents of Parker and Flowers, who were vicariously liable for fraudulent misrepresentations made by the Links. Damages were awarded to the Plaintiffs. In a second appeal, this time by Parker and Flowers, the Court of Appeals affirmed as to those five Plaintiffs who had attended the presentation in Gatlinburg, but remanded for a new trial as to those who did not. We granted an application for permission to appeal to consider whether the order of dismissal in favor of the agents precluded any adjudication of vicarious liability as to the principals. We find that the order of dismissal in regard to the Links has become final, was on the merits, and involves the same cause of action as the pending fraudulent misrepresentation claims. The doctrine of res judicata applies. Because the Plaintiffs’ right of action against the agents has been extinguished by operation of law, the Plaintiffs are not entitled to a judgment against Parker and Flowers based solely upon the fraudulent misrepresentations by the Links as agents. Moreover, the Plaintiffs did not properly preserve for appeal their claims of direct liability against Parker and Flowers. The judgment of the Court of Appeals is, therefore, reversed, the jury’s verdict assigning vicarious liability to Parker and Flowers is vacated, and the case is dismissed.
Opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TSC/2009/creecha_033109.pdf
“When an agency relationship has been established, the principal may be bound by the acts of the agent performed on the principal’s behalf and within the actual or apparent scope of the agency. Boren ex rel. Boren v. Weeks, 251 S.W.3d 426, 432 (Tenn. 2008); White v. Revco Disc. Drug Ctrs., Inc., 33 S.W.3d 713, 723 (Tenn. 2000). The law does not require that the principal either expressly direct or have knowledge of the agent’s tortious act; rather, it is enough that the agent was acting in the business of his superior. White, 33 S.W.3d at 724. “ Id.
“[A] principal may not be held vicariously liable under the doctrine of respondeat superior based upon the acts of its agent in three instances: (1) when the agent has been exonerated by an adjudication of non-liability, (2) when the right of action against the agent is extinguished by operation of law, or (3) when the injured party extinguishes the agent’s liability by conferring an affirmative, substantive right upon the agent that precludes assessment of liability against the agent.” Id.
The eleven Plaintiffs, investors in a real estate development in Tunica, Mississippi, suffered losses when the financing for hotels on the tracts of land they had leased failed to materialize. Five of the Plaintiffs first learned of the investment opportunity in 1993 while attending a presentation by real estate agents Lloyd and Betty Link in Gatlinburg. After suit was filed against several Defendants based upon breach of oral and written contracts, the trial court entered an order of dismissal as to the Links and other of the Defendants and, later, granted a motion for summary judgment in favor of D.C. Parker and Richard Flowers, the owners of the land. When judgments had been entered as to all of the Defendants, the Plaintiffs appealed, but only as to Parker and Flowers. The Court of Appeals reversed, holding that whether an agency relationship existed between Parker and Flowers, as principals, and the Links, and whether the Links had been guilty of misrepresentation were disputed questions of fact. Upon remand, a jury found that the Links were the agents of Parker and Flowers, who were vicariously liable for fraudulent misrepresentations made by the Links. Damages were awarded to the Plaintiffs. In a second appeal, this time by Parker and Flowers, the Court of Appeals affirmed as to those five Plaintiffs who had attended the presentation in Gatlinburg, but remanded for a new trial as to those who did not. We granted an application for permission to appeal to consider whether the order of dismissal in favor of the agents precluded any adjudication of vicarious liability as to the principals. We find that the order of dismissal in regard to the Links has become final, was on the merits, and involves the same cause of action as the pending fraudulent misrepresentation claims. The doctrine of res judicata applies. Because the Plaintiffs’ right of action against the agents has been extinguished by operation of law, the Plaintiffs are not entitled to a judgment against Parker and Flowers based solely upon the fraudulent misrepresentations by the Links as agents. Moreover, the Plaintiffs did not properly preserve for appeal their claims of direct liability against Parker and Flowers. The judgment of the Court of Appeals is, therefore, reversed, the jury’s verdict assigning vicarious liability to Parker and Flowers is vacated, and the case is dismissed.
Opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TSC/2009/creecha_033109.pdf
“When an agency relationship has been established, the principal may be bound by the acts of the agent performed on the principal’s behalf and within the actual or apparent scope of the agency. Boren ex rel. Boren v. Weeks, 251 S.W.3d 426, 432 (Tenn. 2008); White v. Revco Disc. Drug Ctrs., Inc., 33 S.W.3d 713, 723 (Tenn. 2000). The law does not require that the principal either expressly direct or have knowledge of the agent’s tortious act; rather, it is enough that the agent was acting in the business of his superior. White, 33 S.W.3d at 724. “ Id.
“[A] principal may not be held vicariously liable under the doctrine of respondeat superior based upon the acts of its agent in three instances: (1) when the agent has been exonerated by an adjudication of non-liability, (2) when the right of action against the agent is extinguished by operation of law, or (3) when the injured party extinguishes the agent’s liability by conferring an affirmative, substantive right upon the agent that precludes assessment of liability against the agent.” Id.
BARBARA AUSTIN, ET AL. v. STEVE ALLEN, ET AL. (Tenn. Ct. App. March 30, 2009).
Plaintiffs' complaint raised several causes of action relating to the removal of Defendants' fence and the enforcement of a drainage easement. The jury found that the Plaintiffs were not entitled to relief under any cause of action. The trial court entered judgment in accordance with the jury's verdict and awarded discretionary costs to the Defendants. On appeal, the Plaintiffs challenge the verdict form and jury instructions as improper; the lack of material evidence in support of the verdict; the trial court's abuse of its role as thirteenth juror; the trial court's reliance on an affidavit containing false statements in denying Plaintiffs' motion for partial summary judgment; the trial court's abuse of its discretion in making evidentiary and argument decisions; and the award of costs as improper. Finding that the award of costs under Rule 68 was an abuse of discretion, we vacate the award; we modify the award of costs under Rule 54. The decision of the trial court in all other respects is affirmed.
Opinion may be found at the TBA website:
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METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY v. THE ALLEN FAMILY TRUST ET AL. (Tenn. Ct, App. March 30, 2009).
Metropolitan government instituted condemnation proceedings against property owners to acquire an easement for the construction of a sewer line. The trial court granted Metro's request for an order of possession. On appeal, property owners challenge the trial court's determination that the power of eminent domain was being exercised for a public use. We affirm the trial court's decision.
Metropolitan government instituted condemnation proceedings against property owners to acquire an easement for the construction of a sewer line. The trial court granted Metro's request for an order of possession. On appeal, property owners challenge the trial court's determination that the power of eminent domain was being exercised for a public use. We affirm the trial court's decision.
Opinion may be found at the TBA website:
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