VANDERBILT UNIVERSITY v. KAFIRISTAN BLOKES PARTNERSHIP d/b/a THE PRINCETON REVIEW OF TENNESSEE, ET AL. (Tenn. Ct. App. September 16, 2009)
Lessee appeals the trial court's finding on summary judgment that lessor did not violate a provision in their lease whereby lessor agreed to work with lessee to develop acceptable exterior signage. We affirm.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2009/vanderbilt_091609.pdf
Wednesday, September 16, 2009
Tuesday, September 8, 2009
Court reviews denial of a TRCP Rule 15 motion in an eminent domain case
BENTON COUNTY, TENNESSEE, ET AL. v. VERN FRANKLIN CHUMNEY (Tenn. Ct. App. September 8, 2009)
This is an eminent domain case. The Appellants appeal the trial court's denial of a Tenn. R. Civ. P. 15.02 motion. We dismiss the appeal for failure to appeal a final judgment.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2009/chumneyv_090809.pdf
This is an eminent domain case. The Appellants appeal the trial court's denial of a Tenn. R. Civ. P. 15.02 motion. We dismiss the appeal for failure to appeal a final judgment.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2009/chumneyv_090809.pdf
Wednesday, July 15, 2009
According to contract with 90 day default period, purchaser was not in default because even though he was late,no payments were more than 90 days late
THOMAS S. STARKS v. TROY D. WHITE
(Tenn.Ct. App. June 17, 2009).
This is a breach of contract case. Purchaser/Appellant appeals the trial court's finding that Purchaser/Appellant is in breach of the contract for sale of real property, and entry of judgment in favor of Seller/Appellee pursuant to the default provisions of the contract. Specifically, the trial court found Purchaser/Appellant in breach on grounds of late payments, failure to list Seller/Appellee as additional insured, and failure to provide proof of termite treatment. We modify and affirm on the grounds of failure to list Seller/Appellee as an additional insured and on failure to provide termite protection contract.
(Tenn.Ct. App. June 17, 2009).
This is a breach of contract case. Purchaser/Appellant appeals the trial court's finding that Purchaser/Appellant is in breach of the contract for sale of real property, and entry of judgment in favor of Seller/Appellee pursuant to the default provisions of the contract. Specifically, the trial court found Purchaser/Appellant in breach on grounds of late payments, failure to list Seller/Appellee as additional insured, and failure to provide proof of termite treatment. We modify and affirm on the grounds of failure to list Seller/Appellee as an additional insured and on failure to provide termite protection contract.
Opinion may be found at the TBA website:
"Under section seven of the contract, see supra, Mr. White’s payments can be up to ninety days late before he is actually in default. We have reviewed all of the checks and receipts submitted in this case, from all of which it appears that Mr. White was consistently late with his payments. But, again, the default period is ninety days under the contract. Although Mr. White’s payments are late, none appear to be more than ninety days so. From the proof, Mr. White’s November 8, 2006 payment was not made until January 12, 2007. His December 8, 2006 payment was not made until January 30, 2007, and the January 8, 2007 payment was not made until February 20, 2007. Although these payments were as much as sixty-four days late, we cannot agree with the trial court that more than ninety days elapsed between the payment and its due date so as to render Mr. White in default under the contract." Id.
First to file and provide notice has priority over all other interests in property
METRO CONSTRUCTION CO., LLC v. SIM ATTRACTIONS, LLC, ET AL.
(Tenn. Ct. App. June 9, 2009).
This case originated with a mechanic's and materialman's lien asserted by Plaintiff Metro Construction against commercial real property owned by Defendant/Cross Plaintiff Peabody Place Center in Memphis. It arises from improvements made by Metro Construction to a leasehold held by Defendant Sim Attractions. Sim Attractions abandoned the leasehold without compensating Metro Construction for the improvements, which included the installation of a several-ton race car simulator that remained in the abandoned leasehold. Defendant Fitraco claimed the simulator was its property under the terms of a lease agreement between Fitraco and Sim Attractions. It alternatively asserted a superior security interest. The trial court found that the simulator was personal property and determined that that the agreement between Sim Attractions and Fitraco was not a lease but an unperfected, disguised security agreement. The trial court attached the simulator to secure judgment in favor of Metro Construction. It also awarded Metro Construction discovery sanctions against Fitraco. The trial court awarded Peabody Place damages for lost rent. Fitraco appeals, asserting it had leased the simulator to Sim Attractions or, in the alternative, that it had properly perfected its security interest prior to judicial attachment by the trial court. It further asserts the damages claimed by Peabody Place were speculative. We reverse the judgment in favor of Metro Construction and affirm the judgment in favor of Peabody Place.
(Tenn. Ct. App. June 9, 2009).
This case originated with a mechanic's and materialman's lien asserted by Plaintiff Metro Construction against commercial real property owned by Defendant/Cross Plaintiff Peabody Place Center in Memphis. It arises from improvements made by Metro Construction to a leasehold held by Defendant Sim Attractions. Sim Attractions abandoned the leasehold without compensating Metro Construction for the improvements, which included the installation of a several-ton race car simulator that remained in the abandoned leasehold. Defendant Fitraco claimed the simulator was its property under the terms of a lease agreement between Fitraco and Sim Attractions. It alternatively asserted a superior security interest. The trial court found that the simulator was personal property and determined that that the agreement between Sim Attractions and Fitraco was not a lease but an unperfected, disguised security agreement. The trial court attached the simulator to secure judgment in favor of Metro Construction. It also awarded Metro Construction discovery sanctions against Fitraco. The trial court awarded Peabody Place damages for lost rent. Fitraco appeals, asserting it had leased the simulator to Sim Attractions or, in the alternative, that it had properly perfected its security interest prior to judicial attachment by the trial court. It further asserts the damages claimed by Peabody Place were speculative. We reverse the judgment in favor of Metro Construction and affirm the judgment in favor of Peabody Place.
Opinion may be found at the TBA website:
"Under Revised Article 9 as adopted in Tennessee and Wisconsin, Fitraco properly filed a financing statement giving sufficient notice of its interest in the simulator. Because the collateral - the simulator - was located in Tennessee, whether Fitraco’s perfected security interest gives it priority superior to Metro Construction’s interest pursuant to judicial attachment is governed by Tennessee law. UCC § 9-301(3)(C). Generally, but subject to exceptions not present here, Tennessee adheres to the “first to file” or the “first to perfect” rule to determine priority. A perfected security interest takes priority over a lien creditor." Id.
Convenience does not prevent the extinguishment of an easement by necessity
VICKIE ROBNETT V. EDWARD H. TENISON, J.R.
(Tenn. Ct. App. September 23, 2008).
The issue is whether a court-ordered easement by necessity for ingress and egress to landlocked property may be terminated on the ground it is no longer necessary because the landlocked owner has an express easement through which that owner has reasonable, although not as desirable, ingress and egress. The trial court denied the petition to terminate the easement by necessity upon a finding it would place an undue burden on the landlocked property owner to have it terminated. We have determined the trial court applied an incorrect legal standard, that of undue burden, to deny the petition to terminate the easement at issue. Easements by necessity are dependent on the necessity that created them; therefore, a way of necessity continues only as long as a necessity for its use continues. The fact that the way of necessity would be the most convenient does not prevent its extinguishment when it ceases to be absolutely necessary. Accordingly, we reverse the decision of the trial court.
Opinion may be found at the TBA website:
http://www.tsc.state.tn.us/
"The existence of an easement by necessity is dependent on the necessity that created it. 28A C.J.S. Easements § 161 (2008). Therefore, “a way of necessity continues as long, but only as long, as a necessity for its use continues.” Id. (emphasis added). “If an easement for a particular purpose is granted, when that purpose no longer exists, there is an end of the easement.” McGiffin v. City of Gatlinburg, 260 S.W.2d 152, 154 (Tenn. 1953) (quoting Washburn, Treatise on Easement, 654 (3d ed.)). “The fact that a former way of necessity continues to be the most convenient way will not prevent its extinguishment when it ceases to be absolutely necessary.” Id.
JIMMY KYLE, ET AL. V. J.A. FULMER TRUST
(Tenn. Ct. App. December 9, 2008).
This appeal concerns a purchase option in a lease of a tract of land in Shelby County, Tennessee. Executed in 1950, the lease had an initial term of 50 years and six months. In 1953, the Lessee exercised its option to renew, allowing possession for an additional 50 years through 2050. In 2001, the Lessee attempted to exercise its option to purchase the leased property. Lessor then sought a declaratory judgment determining the validity of the purchase option, and if valid, the value to be paid for the Lessor’s interest in the property. The trial court found that the Lessee properly exercised the purchase option and that the value of the Lessor’s interest should be based upon the property as unencumbered by the remaining 50-year lease term. We affirm the trial court’s finding regarding the purchase option, but reverse its determination of the value of the Lessor’s interest in the property. Affirmed in part, reversed in part and remanded.
Opinion may be found at the TBA website:
http://www.tsc.state.tn.us/
JEROME WILLIAM DEVEREAUX, JR., ET UX. v. JEROME WILLIAM DEVEREAUX, SR., ET UX.
(Tenn. Ct. App. June 5, 2009).
This case involves a family dispute over real property. The plaintiffs filed suit to enforce a document which purported to convey to them a co-ownership interest in certain property and to estop and enjoin the defendants from selling the property at issue. After a bench trial, the trial court found that the plaintiffs were "equitably entitled to ownership of the five acre tract they have improved." We affirm.
(Tenn. Ct. App. June 5, 2009).
This case involves a family dispute over real property. The plaintiffs filed suit to enforce a document which purported to convey to them a co-ownership interest in certain property and to estop and enjoin the defendants from selling the property at issue. After a bench trial, the trial court found that the plaintiffs were "equitably entitled to ownership of the five acre tract they have improved." We affirm.
Opinion may be found at the TBA website:
SAM L. HULL v. STUART THOMAS HOOD, ET AL.
(Tenn. Ct. App. June 1, 2009).
Landowner, who brought suit against adjoining property owners to recover for trespass, conversion of property and damages for removal of timber on his property, appeals the trial court's determination of common boundary line between the parties' property and dismissal of claims related to removal of timber. We affirm the judgment of the trial court.
(Tenn. Ct. App. June 1, 2009).
Landowner, who brought suit against adjoining property owners to recover for trespass, conversion of property and damages for removal of timber on his property, appeals the trial court's determination of common boundary line between the parties' property and dismissal of claims related to removal of timber. We affirm the judgment of the trial court.
Opinion may be found at the TBA website:
JOHN S. BRYAN, JR., ET AL. v. WILLIAM R. (BILL) MITCHELL, JR., ET AL.
(Tenn. Ct. App. June 1, 2009).
John S. Bryan, Jr. and Debbie W. Bryan ("Plaintiffs") sued William R. (Bill) Mitchell, Jr. and Sherry L. Mitchell ("Defendants") in a dispute over real property located in Lincoln County, Tennessee. The case was heard before a Special Master. After a hearing, the Trial Court entered an order, inter alia, adopting the Special Master's findings. Defendants appeal to this Court. No transcript or statement of the evidence is in the record on appeal. We affirm.
(Tenn. Ct. App. June 1, 2009).
John S. Bryan, Jr. and Debbie W. Bryan ("Plaintiffs") sued William R. (Bill) Mitchell, Jr. and Sherry L. Mitchell ("Defendants") in a dispute over real property located in Lincoln County, Tennessee. The case was heard before a Special Master. After a hearing, the Trial Court entered an order, inter alia, adopting the Special Master's findings. Defendants appeal to this Court. No transcript or statement of the evidence is in the record on appeal. We affirm.
Opinion may be found at the TBA website:
RICHARD T.D. BETHEA, ET AL. v. SONG HEE HONG, ET AL.
(Tenn. Ct. App. May 29, 2009)
This appeal involves a dispute arising out of a contract for the sale of Appellant's house. After the contract was executed, Appellees conducted a home inspection which revealed mold in the home's air ducts. Appellants refused to repair the air ducts, and Appellees terminated the agreement. Both parties filed motions for summary judgment. The trial court granted summary judgment in favor of Appellees finding that termination was an available remedy under the terms of the agreement. Finding no error in this conclusion, we affirm the judgment of the trial court.
(Tenn. Ct. App. May 29, 2009)
This appeal involves a dispute arising out of a contract for the sale of Appellant's house. After the contract was executed, Appellees conducted a home inspection which revealed mold in the home's air ducts. Appellants refused to repair the air ducts, and Appellees terminated the agreement. Both parties filed motions for summary judgment. The trial court granted summary judgment in favor of Appellees finding that termination was an available remedy under the terms of the agreement. Finding no error in this conclusion, we affirm the judgment of the trial court.
Opinion may be found at the TBA website:
DONNIE VAUGHT, ET AL. v. ALAN JAKES, SR. and wife DEBORAH JAKES, ET AL.
(Tenn. Ct. App. May 26, 2009).
A group of Rutherford County landowners whose property abutted one side of a private road which they maintained at their own expense filed a suit for trespass against a neighbor and developer who used the same road for access to houses he was building on the other side. Their suit also included a due process claim against the County for erroneously granting building permits for those houses. The trial court agreed that the building permits were granted in error, but ruled that the county's action was an innocent error rather than a due process violation. The trial court also dismissed the plaintiffs' claims against the developer, holding that he was entitled to use the road because of a permanent easement he had acquired from his predecessors-in-interest. We affirm the trial court's dismissal of the due process claim, but reverse its dismissal of the trespass claim because the evidence shows that the individual who sold the property to the defendant had abandoned the easement and, thus, that the defendant had no right to use the road.
(Tenn. Ct. App. May 26, 2009).
A group of Rutherford County landowners whose property abutted one side of a private road which they maintained at their own expense filed a suit for trespass against a neighbor and developer who used the same road for access to houses he was building on the other side. Their suit also included a due process claim against the County for erroneously granting building permits for those houses. The trial court agreed that the building permits were granted in error, but ruled that the county's action was an innocent error rather than a due process violation. The trial court also dismissed the plaintiffs' claims against the developer, holding that he was entitled to use the road because of a permanent easement he had acquired from his predecessors-in-interest. We affirm the trial court's dismissal of the due process claim, but reverse its dismissal of the trespass claim because the evidence shows that the individual who sold the property to the defendant had abandoned the easement and, thus, that the defendant had no right to use the road.
Opinion may be found at the TBA website:
ARTHUR CREECH ET AL. v. ROBERT R. ADDINGTON ET AL. CORRECTION
(Tenn. Sup. Ct. March 27, 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.
(Tenn. Sup. Ct. March 27, 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.
The opinion may be found at the TBA website:
Friday, June 5, 2009
Plaintiff collaterally estopped because he was previously denied standing in a forfeiture action
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. .
(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. .
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.
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