CHARLES PARSLEY v. ELMER PRICE (Tenn. Ct. App. June 25, 2010)
Charles Parsley ("the plaintiff"), proceeding pro se, sued Elmer Price ("the defendant") in the General Sessions Court for Hawkins County. In attempting to allege his cause of action, the plaintiff employed a civil warrant form with the pre-printed designation, "Detainer Summons." The general sessions court transferred the case to the trial court. The trial court correctly concluded that the plaintiff's suit was not a detainer action but rather a suit "in the nature of either quiet title or of ejectment." Following a bench trial on September 22, 2009, the court incorporated its written memorandum opinion into an order and granted "judgment in favor of the defendant." Plaintiff appeals. We affirm.
Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/parsleyc_062510.pdf
Friday, June 25, 2010
Monday, June 21, 2010
Court reviews whether seller breached a contract in an agreement for the sale of real property
ROBERT J. DAVIDSON and wife, JEANETTE DAVIDSON v. RILEY WILSON (Tenn. Ct. App. June 21, 2010)
This case involves a contract for the sale of real property and a subsequent verbal agreement. The trial court found that the seller breached the contract. We reverse and remand.
Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/davidsonr_062110.pdf
This case involves a contract for the sale of real property and a subsequent verbal agreement. The trial court found that the seller breached the contract. We reverse and remand.
Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/davidsonr_062110.pdf
Wednesday, October 14, 2009
Court holds that abutting property owners are entitled to ingress/egress use of abandoned city street
RONALD SWAFFORD v. DAVID AND SANDY WARD (Tenn. Ct. App. August 27, 2009)
When defendants obstructed plaintiffs' and abutting owners' use of alleyway, plaintiffs filed for declaratory judgment that the alley was a city street and they were entitled to use the alleyway. After an evidentiary hearing, the Trial Judge ruled that the alley had in fact been a city street and the City had abandoned it, but plaintiffs, as abutting owners, could continue to use the alleyway for ingress and egress. Defendants have appealed. We affirm the Trial Court.
Opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/swaffordr_082709.pdf
When defendants obstructed plaintiffs' and abutting owners' use of alleyway, plaintiffs filed for declaratory judgment that the alley was a city street and they were entitled to use the alleyway. After an evidentiary hearing, the Trial Judge ruled that the alley had in fact been a city street and the City had abandoned it, but plaintiffs, as abutting owners, could continue to use the alleyway for ingress and egress. Defendants have appealed. We affirm the Trial Court.
Opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/swaffordr_082709.pdf
Court examines whether purchasers of property were on inquiry notice of lien against seller
NINA SUH v. RAYMOND GIBBS, ET AL. (Tenn. Ct. App. August 27, 2009)
In this litigation, Nina Suh (the "plaintiff") sued the purchaser of property once owned by Jung Lim Lee to enforce a judgment lien the plaintiff recorded against Jung L. Fowler. Lee and Fowler are the same person. The complaint asks that property identified as lot 6 of Hampton Hall Subdivision, Knoxville, be sold to satisfy the lien. The original defendants were Robert L. Davis, who purchased the property directly from Lee, and Davis' mortgagee, New Century Mortgage. Davis later sold to Raymond Gibbs and Edith Gibbs, who were substituted as defendants in place of Davis. The defendants moved for summary judgment on the ground that the lien recorded against Fowler was ineffective against them since they purchased from a title holder named Lee and the recording did not give them notice of a lien against Lee. The trial court granted summary judgment on the basis of this court's opinions in Young v. RAC Express, Inc., No. E2005-01165-COA-R3-CV, 2006 WL 1699001 (Tenn. Ct. App., filed June 21, 2006) and Gibson v. Flynn, No. 88-120-II, 1988 WL 119257 (Tenn. Ct. App., filed November 10, 1988). The plaintiff appeals. We affirm pursuant to the provisions of Court of Appeals Rule 10.1.
Opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/suhn_082709.pdf
In this litigation, Nina Suh (the "plaintiff") sued the purchaser of property once owned by Jung Lim Lee to enforce a judgment lien the plaintiff recorded against Jung L. Fowler. Lee and Fowler are the same person. The complaint asks that property identified as lot 6 of Hampton Hall Subdivision, Knoxville, be sold to satisfy the lien. The original defendants were Robert L. Davis, who purchased the property directly from Lee, and Davis' mortgagee, New Century Mortgage. Davis later sold to Raymond Gibbs and Edith Gibbs, who were substituted as defendants in place of Davis. The defendants moved for summary judgment on the ground that the lien recorded against Fowler was ineffective against them since they purchased from a title holder named Lee and the recording did not give them notice of a lien against Lee. The trial court granted summary judgment on the basis of this court's opinions in Young v. RAC Express, Inc., No. E2005-01165-COA-R3-CV, 2006 WL 1699001 (Tenn. Ct. App., filed June 21, 2006) and Gibson v. Flynn, No. 88-120-II, 1988 WL 119257 (Tenn. Ct. App., filed November 10, 1988). The plaintiff appeals. We affirm pursuant to the provisions of Court of Appeals Rule 10.1.
Opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/suhn_082709.pdf
Court reviews whether municipal planning commisision has statutory authority to approve site development plans
ROB ROTEN AND JERROLD SWAFFORD v. THE CITY OF SPRING HILL, TENNESSEE, ACTING BY AND THROUGH ITS PLANNING COMMISSION, AND IS INVESTMENT, INC. (Tenn. Ct. App. August 27, 2009)
Residents of the City of Spring Hill brought common law writ of certiorari challenging the City Planning Commission's authority to approve site development plans for proposed construction within the City. The Chancery Court upheld the action of the Planning Commission. Finding no error, we affirm the judgment.
Opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/rotenr_082709.pdf
Residents of the City of Spring Hill brought common law writ of certiorari challenging the City Planning Commission's authority to approve site development plans for proposed construction within the City. The Chancery Court upheld the action of the Planning Commission. Finding no error, we affirm the judgment.
Opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/rotenr_082709.pdf
Court rules on superior title to/adverse possession of disputed property
SCOTT A. HEATON, ET AL. v. DEAN STEFFEN, ET AL. (Tenn. Ct. App. August 27, 2009)
This litigation is about disputed ownership of 20 acres of mountain land in Carter County. The case was tried without a jury resulting in a judgment for Dean Steffen ("the defendant"). The trial court found that there was no question as to the amount or location of the disputed property ("the Disputed area"). Brothers Scott A. Heaton and Daniel J. Heaton ("the plaintiffs") proceeded on two theories: (1) that they had superior title to the Disputed area, and, if not, (2) that the land had been adversely possessed long enough to sustain their ownership. The court found that the defendant, who purchased his land in 1985, had superior title to the Disputed area through deeds that dated back to the 1800s. The defendant's chain of title did not vary in description or acreage. The court found that the plaintiffs' title to the Disputed Area was based solely on a deed of correction made in 1987 by family members, a deed that the court found had no legal basis. The trial court also found that the plaintiffs had not established adverse possession. After judgment was entered for the defendant, the plaintiffs moved to alter or amend the judgment, asking, among other things, for an order defining the complete boundaries of their land to include the Disputed area. The trial court denied the motion. The plaintiffs appeal. We affirm.
Opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/heatons_082709.pdf
This litigation is about disputed ownership of 20 acres of mountain land in Carter County. The case was tried without a jury resulting in a judgment for Dean Steffen ("the defendant"). The trial court found that there was no question as to the amount or location of the disputed property ("the Disputed area"). Brothers Scott A. Heaton and Daniel J. Heaton ("the plaintiffs") proceeded on two theories: (1) that they had superior title to the Disputed area, and, if not, (2) that the land had been adversely possessed long enough to sustain their ownership. The court found that the defendant, who purchased his land in 1985, had superior title to the Disputed area through deeds that dated back to the 1800s. The defendant's chain of title did not vary in description or acreage. The court found that the plaintiffs' title to the Disputed Area was based solely on a deed of correction made in 1987 by family members, a deed that the court found had no legal basis. The trial court also found that the plaintiffs had not established adverse possession. After judgment was entered for the defendant, the plaintiffs moved to alter or amend the judgment, asking, among other things, for an order defining the complete boundaries of their land to include the Disputed area. The trial court denied the motion. The plaintiffs appeal. We affirm.
Opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/heatons_082709.pdf
Court examines whether timber cutter was bona fide purchaser of timber rights
REMOTE WOODYARDS, LLC. v. THE ESTATE OF ROMIE NEISLER, ET AL. (Tenn. Ct. App. August 25, 2009)
This case arises from a dispute over a timber contract. Appellees, through their attorney-in-fact, executed a timber deed in favor of John Jones, which deed was recorded. Mr. Jones then assigned the deed to the Appellant herein, and this assignment was not recorded. When the Appellees discovered that Mr. Jones' checks were insufficient, they re-sold the timber to the third-party defendant. The third party paid value for the timber, and proceeded to cut and remove it. Appellant then filed suit against the Appellees and the third party defendant. The trial court found that Appellant was a bona fide purchaser for value, but declined to award double or treble damages pursuant to Tenn. Code Ann. section 43-28-312. The trial court also relieved the Appellees' attorney-in-fact from liability, and determined that the third party defendant was also a bona fide purchaser and, therefore, not liable. Appellant appeals. We affirm.
Opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/remotewoodyards_082509.pdf
This case arises from a dispute over a timber contract. Appellees, through their attorney-in-fact, executed a timber deed in favor of John Jones, which deed was recorded. Mr. Jones then assigned the deed to the Appellant herein, and this assignment was not recorded. When the Appellees discovered that Mr. Jones' checks were insufficient, they re-sold the timber to the third-party defendant. The third party paid value for the timber, and proceeded to cut and remove it. Appellant then filed suit against the Appellees and the third party defendant. The trial court found that Appellant was a bona fide purchaser for value, but declined to award double or treble damages pursuant to Tenn. Code Ann. section 43-28-312. The trial court also relieved the Appellees' attorney-in-fact from liability, and determined that the third party defendant was also a bona fide purchaser and, therefore, not liable. Appellant appeals. We affirm.
Opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/remotewoodyards_082509.pdf
Court examines whether carport construction violates restrictive covenants of homeowner's association
FEATHERFOOT POINT PROPERTY OWNERS ASSOCIATION, INC. v. JIM ZWEIG, ET AL. (Tenn. Ct. App. August 25, 2009)
This appeal arises from Appellant's action to enforce a restrictive covenant in a residential subdivision. The matter was heard by the trial court in a non-jury trial on August 12, 2008. Before Appellant completed its presentation of evidence, the trial court sua sponte ended the proceeding and entered an order of involuntary dismissal. Finding that the trial court erred in dismissing the case before Appellant completed its presentation of evidence, we reverse.
Opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/featherfoot_082509.pdf
This appeal arises from Appellant's action to enforce a restrictive covenant in a residential subdivision. The matter was heard by the trial court in a non-jury trial on August 12, 2008. Before Appellant completed its presentation of evidence, the trial court sua sponte ended the proceeding and entered an order of involuntary dismissal. Finding that the trial court erred in dismissing the case before Appellant completed its presentation of evidence, we reverse.
Opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/featherfoot_082509.pdf
Court examines whether implied easement exhists to abandoned public road
JAMIE McAFEE, ET AL. v. RUBY LAMBERT, ET AL. (Tenn. Ct. App. August 21, 2009)
Defendant landowners appeal the trial court's judgment finding that they had dedicated a roadway to public use by implication, and ordering the parties to widen the roadway and move utility lines. We dismiss for lack of a final judgment.
Opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/mcafeej_082109.pdf
Defendant landowners appeal the trial court's judgment finding that they had dedicated a roadway to public use by implication, and ordering the parties to widen the roadway and move utility lines. We dismiss for lack of a final judgment.
Opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/mcafeej_082109.pdf
Court reviews appropriateness of court-ordered partition by sale where partition in kind would detract from property values
EMMA LOU HALE v. GERALD D. HALE AND BONNIE F. HALE (Tenn. Ct. App. August 13, 2009)
Plaintiff sought a partition by sale of property she owned as a tenant in common. The defendants sought a partition in kind. The undisputed proof showed that the parcels were more valuable if sold together than if they were divided and sold separately. The trial court ordered the property sold. The defendants appealed. We affirm.
Opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/halee_081309.pdf
Plaintiff sought a partition by sale of property she owned as a tenant in common. The defendants sought a partition in kind. The undisputed proof showed that the parcels were more valuable if sold together than if they were divided and sold separately. The trial court ordered the property sold. The defendants appealed. We affirm.
Opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/halee_081309.pdf
Applicability of City of Smyrna's Storm Water User Fees to Agricultural Land
TN Attorney General Opinions
August 5, 2009
Opinion Number: 09-147
Opinion may be found at the TBA website:
http://www.tba2.org/tba_files/AG/2009/ag_09_147.pdf
TN Attorney General Opinions
August 5, 2009
Opinion Number: 09-147
Opinion may be found at the TBA website:
http://www.tba2.org/tba_files/AG/2009/ag_09_147.pdf
Court examines maintenance covenant and forfeiture clause of lease agreement in lease breach case
DONNA MARIE RICHMOND, ET AL. v. JEAN FRAZIER CORRECTION (Tenn. Ct. App. August 5, 2009)
This appeal concerns the termination of a lease and the subsequent initiation of a detainer action. Donna Marie Richmond, Harry Richmond, II, and Rebecca R. White ("Lessors") alleged that the lessee, Jean Frazier ("Ms. Frazier"), defaulted on the Church Hill Lease ("Lease") as a result of the deteriorating condition of the Church Hill Shopping Center. When Ms. Frazier refused to relinquish the premises after termination of the Lease, Lessors filed the detainer action to reclaim the property. After a trial, the Chancery Court held that Ms. Frazier did not break the Lease because of the prior course of conduct of the parties and that Ms. Frazier took reasonable care of the premises. Based on the plain language of the Lease agreement and the factual findings of the trial court, we reverse.
Opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/richmondd_CORR_080509.pdf
This appeal concerns the termination of a lease and the subsequent initiation of a detainer action. Donna Marie Richmond, Harry Richmond, II, and Rebecca R. White ("Lessors") alleged that the lessee, Jean Frazier ("Ms. Frazier"), defaulted on the Church Hill Lease ("Lease") as a result of the deteriorating condition of the Church Hill Shopping Center. When Ms. Frazier refused to relinquish the premises after termination of the Lease, Lessors filed the detainer action to reclaim the property. After a trial, the Chancery Court held that Ms. Frazier did not break the Lease because of the prior course of conduct of the parties and that Ms. Frazier took reasonable care of the premises. Based on the plain language of the Lease agreement and the factual findings of the trial court, we reverse.
Opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/richmondd_CORR_080509.pdf
RODNEY MARRA v. BANK OF NEW YORK, TRUSTEE, AND PHILIP M. KLEINSMITH, TRUSTEE (Tenn. Ct. App. August 4, 2009)
This appeal involves a court clerk's fee for facilitating a foreclosure sale. The defendant bank held a foreclosure sale of the plaintiff's home without giving the plaintiff proper notice. The plaintiff then filed this action and the sale was set aside. The trial court ordered that the property be re-auctioned and appointed the clerk and master of the chancery court as a special commissioner to facilitate the sale. At the second sale, the plaintiff purchased the property. The trial court ordered that the clerk be awarded 5% of the purchase price as his fee for services rendered in connection with the sale. The bank objected, arguing that the clerk's fee was excessive. The trial court conducted a hearing and held that the fee to the clerk was reasonable. The bank appealed, naming the court clerk as an appellee in the notice of appeal, but failing to file a motion to add him as a party. The appeal was dismissed for lack of a final order. On remand, the court clerk filed a motion asking the trial court to confirm that he was immune from suit and that disbursement of his fee was proper. The clerk also sought Rule 11 sanctions in the form of appellate attorney's fees against the bank's attorney for naming him as a party in the notice of appeal without properly adding him. The bank filed two cross-motions for sanctions. The trial court held that the clerk was immune from suit and that disbursement of the fee to the clerk was proper. The clerk's motion for Rule 11 sanctions was granted, and the bank's two cross-motions for sanctions were denied. The bank and its attorney now appeal. We hold that the statement of the evidence filed by the appellants and not objected to by the appellees or ruled on by the trial court is deemed approved under T.R.A.P. 24. Addressing the merits, we reverse the trial court's award of appellate attorney's fees as sanctions under Rule 11. All other decisions by the trial court are affirmed.
Opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/marrar_080409.pdf
This appeal involves a court clerk's fee for facilitating a foreclosure sale. The defendant bank held a foreclosure sale of the plaintiff's home without giving the plaintiff proper notice. The plaintiff then filed this action and the sale was set aside. The trial court ordered that the property be re-auctioned and appointed the clerk and master of the chancery court as a special commissioner to facilitate the sale. At the second sale, the plaintiff purchased the property. The trial court ordered that the clerk be awarded 5% of the purchase price as his fee for services rendered in connection with the sale. The bank objected, arguing that the clerk's fee was excessive. The trial court conducted a hearing and held that the fee to the clerk was reasonable. The bank appealed, naming the court clerk as an appellee in the notice of appeal, but failing to file a motion to add him as a party. The appeal was dismissed for lack of a final order. On remand, the court clerk filed a motion asking the trial court to confirm that he was immune from suit and that disbursement of his fee was proper. The clerk also sought Rule 11 sanctions in the form of appellate attorney's fees against the bank's attorney for naming him as a party in the notice of appeal without properly adding him. The bank filed two cross-motions for sanctions. The trial court held that the clerk was immune from suit and that disbursement of the fee to the clerk was proper. The clerk's motion for Rule 11 sanctions was granted, and the bank's two cross-motions for sanctions were denied. The bank and its attorney now appeal. We hold that the statement of the evidence filed by the appellants and not objected to by the appellees or ruled on by the trial court is deemed approved under T.R.A.P. 24. Addressing the merits, we reverse the trial court's award of appellate attorney's fees as sanctions under Rule 11. All other decisions by the trial court are affirmed.
Opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/marrar_080409.pdf
KINZEL SPRINGS PARTNERSHIP v. HAROLD KING, ET AL. (Tenn. Crt. App. July 31, 2009)
In this action to quiet title, the plaintiff sought the declaration of the true boundary line between the parties, along with an award of the litigation expenses, discretionary costs, and attorneys' fees incurred in protecting the title to the property. Following a bench trial, the court agreed with the property line claimed by the plaintiff. The defendants appeal. We affirm.
Opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/kinzel_073109.pdf
In this action to quiet title, the plaintiff sought the declaration of the true boundary line between the parties, along with an award of the litigation expenses, discretionary costs, and attorneys' fees incurred in protecting the title to the property. Following a bench trial, the court agreed with the property line claimed by the plaintiff. The defendants appeal. We affirm.
Opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/kinzel_073109.pdf
JIM DOWD, ET AL. v. JAMES A. CANAVAN, ET AL. (Tenn. Ct. App. July 31, 2009)
This case was brought by potential purchasers of a farm, Jim Dowd and Peggy Dowd ("the Buyers"), against the potential sellers, James A. Canavan and Ann Canavan ("the Sellers") to recover earnest money retained by the Sellers under a sales contract. After a bench trial, the court determined the Buyers are entitled to recover the earnest money deposit because they had been unable to secure financing, which was a contingency acknowledged in the contract. The Sellers appeal, arguing that the Buyers were able to arrange financing, and, alternatively, that they did not try hard enough. We affirm.
Opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/dowdj_073109.pdf
This case was brought by potential purchasers of a farm, Jim Dowd and Peggy Dowd ("the Buyers"), against the potential sellers, James A. Canavan and Ann Canavan ("the Sellers") to recover earnest money retained by the Sellers under a sales contract. After a bench trial, the court determined the Buyers are entitled to recover the earnest money deposit because they had been unable to secure financing, which was a contingency acknowledged in the contract. The Sellers appeal, arguing that the Buyers were able to arrange financing, and, alternatively, that they did not try hard enough. We affirm.
Opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/dowdj_073109.pdf
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