Court reviews citations issued against a property owner for failing to obtain permits

METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY, TENNESSEE v. RICHARD A. DEMONBREUN (Tenn. Ct. App. June 29, 2011)

Property owner seeks review of the trial court's decision that two citations were properly issued against him because he did not have a permit for hosting historic home events on his property as required by the Metropolitan Government. We affirm.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/demonbreunr_062911.pdf

Court reviews the termination of an injunction in a case involving secured parties

SENIOR HOUSING ALTERNATIVES, INC. v. BERNARD GLOBAL LOAN INVESTORS, LTD. (Tenn. Ct. App. June 28, 2011)

Senior Housing Alternatives, Inc. ("the Borrower") filed this action against Bernard Global Loan Investors, Ltd. ("the Secured Party") asking the trial court to enjoin the Secured Party from foreclosing on a deed of trust that secured several notes on which the Borrower had defaulted. In essence, the Borrower's complaint alleges that its original lender had defrauded the Borrower and inflated the balance owed on the notes and that the Secured Party had knowledge of the fraud when it took ownership of the notes and deed of trust. The complaint alleges that the merits of the case are at issue in a federal district court in Georgia.

Despite expressing reservations about the Borrower's ability to prevail on the merits, the trial court granted it a temporary injunction to preserve the status quo in an order entered February 15, 2010. The court noted that developments in the federal court action could affect the equities and set a hearing for August 13, 2010, to "review the entire matter." Two days before the hearing date, the Secured Party filed a brief, with supporting affidavits, asking the court to dissolve the injunction. The court heard proof at a status conference and thereafter issued a memorandum opinion explaining that it was dissolving the injunction because, among other things, the court did not believe the Borrower could prevail on the merits. The Borrower appeals from the order dissolving the injunction and dismissing the complaint. We affirm.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/seniorhousing_062811.pdf

Court reviews a boundary line dispute between adjacent property owners

MICHAEL C. DRESSLER ET AL. v. EDWARD BUFORD (Tenn. Ct. App. June 28, 2011)

This is an action to establish the common boundary line between adjacent property owners. Following a four-day bench trial, the trial court adopted Plaintiffs' survey to establish the parties' common boundary line. Defendant appeals arguing that the evidence preponderates against the trial court's findings. Finding the evidence does not preponderate against the trial court's numerous findings, we affirm.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/dresslerm_062811.pdf

Court Reviews a Ruling to Prohibit Homeowners from Using their Property for Nonresidential Purposes

LONNIE E. ROBERTS, ET AL. v. CLAUDE RUSSELL BRIDGES a/k/a LEON RUSSELL, ET UX. (Tenn. Ct. App. May 18, 2011)

This appeal involves the enforcement of a restrictive covenant. A group of neighbors filed suit seeking permanently to enjoin a musician and his wife from using their property for nonresidential purposes. The trial court ruled in favor of the neighbors after a bench trial, prohibiting the homeowners from parking a tour bus, two panel trucks, and several employee vehicles on their property and ordering the homeowners to remove a portion of a parking lot and driveway built to accommodate the vehicles. The court later awarded discretionary costs to the neighbors. We reverse the grant of injunctive relief requiring the homeowners to remove a portion of the parking lot and driveway but affirm the trial court in all other respects.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/robertsl_051811.pdf

Foreclosure publication requirements diminished

Legislation brought on behalf of the Tennessee Banker's Association--that would cut the number of times a notice of foreclosure would have to run in the newspaper from three to two--cleared what may be its last major hurdle when the Senate Judiciary Committee, by a vote of five to four recommended for passage SB1299/HB 1920. The action has preempted efforts by the Tennessee Bar Association to enact more comprehensive reforms in the foreclosure process.

Court Reviews Whether Plaintiff was Barred from Bringing Suit because Defendant was Presumptive Owner of Property at Issue

ELMER ELLIOTT, JR. v. PEARL ELLIOTT, ET AL. (Tenn. Ct. App. May 4, 2011)


The trial court granted summary judgment to defendants, finding that plaintiff was ousted from the property at issue, that defendant Pearl Elliott was the presumptive owner of the property due to recordation and payment of property taxes, and that plaintiff's suit was statutorily barred. We affirm.


Opinion available at:

http://www.tba2.org/tba_files/TCA/2011/elliote_050411.pdf

Court Reviews the Use of Real Property in a Common Interest Community

R. DOUGLAS HUGHES ET AL. v. NEW LIFE DEVELOPMENT CORPORATION ET AL. (Tenn. Ct. App. May 2, 2011)


In this dispute concerning the use of real property located in a common interest community, we have concluded that summary judgment based on the amendments to the restrictive covenants was not appropriate. We also find that the new owner has the authority to act as developer.


Opinion available at:

http://www.tba2.org/tba_files/TCA/2011/hughesr_050211.pdf

Court Reviews Whether Reliance on Plaintiffs’ Survey Expert was Proper in a Case Involving a Boundary Dispute

GARRETT RITTENBERRY ET AL. v. KEVIN PENNELL ET AL. (Tenn. Ct. App. May 2, 2011)

In this boundary dispute, the defendant property owners argue that the trial court erred in its reliance on the survey of the plaintiffs' expert and in concluding that the road in front of the plaintiffs' property is a public county road. We have determined that the evidence does not preponderate against the trial court's decision to credit the survey, but that the trial court erred in concluding that the disputed part of the road was a public county road. 


Opinion available at:

http://www.tba2.org/tba_files/TCA/2011/rittenberryg_050211.pdf

Court Reviews Whether Defendant Undertook a Reasonable Effort to Obtain a Loan

ELIZABETH C. WRIGHT, v. FREDERICO A. DIXON, III (Tenn. Ct. App. May 2, 2011)

In this action to enforce a contract for the sale of real estate against defendant buyer, the Trial Court held that defendant failed to make reasonable efforts to obtain a loan in accordance with the requirement to obtain a mortgage for 100% financing, and awarded damages to plaintiff for breach of the contract since the plaintiff had sold the property before trial.

On appeal, we hold that the evidence preponderates against the Trial Judge's finding that the defendant failed to put forth reasonable efforts to obtain a loan which was a condition in the contract for purchase of the property, and remand. 


Opinion available at:

http://www.tba2.org/tba_files/TCA/2011/wrighte_050211.pdf

Court Reviews Whether a Foreclosure was Wrongful

NORMAN LEE ROBINSON v. MERS, INC. ET AL. (Tenn. Ct. App. April 29, 2011)


This is an appeal by Norman Lee Robinson from a summary judgment granted against him and in favor of his lender, Citizens Bank, and GMAC Mortgage, LLC, the assignee of Robinson's secured note. Robinson filed this action against Citizens Bank and GMAC, as well as others, to stop what he alleged was a wrongful foreclosure. He also demanded compensatory and punitive damages.

The substance of the action is that the defendants should not be permitted to require Robinson to pay into escrow, funds that had been improperly refunded to him. The trial court held that Robinson was in default and that the foreclosure was not wrongful because, despite some dispute as to certain facts, there was no genuine dispute concerning the facts material to the outcome of this case. We affirm. 


Opinion available at:

http://www.tba2.org/tba_files/TCA/2011/robinsonn_042911.pdf

Court Reviews the Allocation of Debts and Expenses in a Case Involving the Dissolution of a Real Estate Partnership

T. VERNER SMITH v. JERRY F. GARDNER (Tenn. Ct. App. April 27, 2011)

This appeal involves a suit for dissolution of a real estate partnership. The defendant-appellee also filed several counterclaims against the plaintiff, who is an attorney. After a bench trial, the trial court dissolved the partnership and found that the defendant-appellant was liable for one-half of the partnership's debts and expenses. The court dismissed the counterclaims. We affirm.

Opinion available at:

http://www.tba2.org/tba_files/TCA/2011/smitht_042711.pdf

Court Reviews Whether Individual Defendants are Additional Lessees in a Case Involving the Breach of a Commercial Lease

ASSOCIATED SHOPPING CENTER PROPERTIES, LTD. v. EDWARD H. HODGE ET AL. (Tenn. Ct. App. March 23, 2011)

The issue in this commercial real estate lease dispute is whether the individual defendants are additional lessees and, thus, personally liable under the lease. Plaintiff, the lessor of retail space, filed this action against the three defendants when the limited liability company, Decor Fabrics, LLC, a lessee, breached the lease by failing to pay rent for the term of the lease. The individual defendants denied liability, asserting that Decor Fabrics, LLC, was the only lessee.

The trial court found that the lease unambiguously identifies each of the individual defendants as additional lessees and assessed damages against them for breach of the lease, including the plaintiff's attorneys fees. Only one of the defendants appealed. He asserts that the trial court erred by finding the lease unambiguous as to the identify of the lessee(s) and by failing to consider the parties' conduct to conclude that Decor Fabrics, LLC, was the only lessee. We affirm.

Opinion Available at:
http://www.tba2.org/tba_files/TCA/2011/hodgee_032311.pdf

Court Reviews Whether All Necessary Parties were Included in a Declaratory Judgment Action Regarding Interpretation of a Real Estate Purchase Contract

MICHAEL ADLER v. DOUBLE EAGLE PROPERTIES HOLDINGS, LLC v. AIRWAYS COMMONS, LLC (Tenn. Ct. App. March 14, 2011)

In this declaratory judgment action, the parties sought interpretation of a real estate purchase contract. The contract between the buyer and the seller provided for the assignment of all leases on the property and proration of rents to the buyer. The parties disputed whether these provisions contemplated a separate agreement between the seller and a third party. At the behest of the parties, the trial court construed both agreements and granted summary judgment to the buyer.

On appeal, we raise, sua sponte, the question of whether all necessary parties were before the trial court pursuant to Tenn. Code Ann. section 29-14-107(a) and Tenn. R. Civ. P. 19. After concluding that all necessary parties were not included in this action, we vacate the judgment of the trial court and remand for further proceedings consistent with this opinion.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/adlerm_031411.pdf

Court reviews whether homeowner's fence violates restrictive covenants of their subdivision

MICHAEL D. HERSHEY ET AL. v. WALLACE CATHEY ET AL. (Tenn. Ct. App. July 27, 2010)

This is an action to enforce a Declaration of Covenants, Conditions and Restrictions for a subdivision. The trial court found the defendant homeowners erected a fence without having obtained proper approval from the Architectural Control Committee, that the fence was in violation of restrictive covenants, and that the fence must be removed. We have determined the evidence does not preponderate against the trial court's findings that defendants failed to obtain the necessary approval to construct the fence and that the fence is in violation of restrictive covenants; thus, we affirm.

Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/hersheym_072710.pdf

Court reviews whether a city is estopped from refusing to re-zone property based on a verbal commitment

STONEYBROOK GOLF COURSE, LLC v. CITY OF COLUMBIA (Tenn. Ct. App. July 27, 2010)

Stoneybrook Golf Course, LLC, purchased approximately 190 acres of land ("the Property") - on part of which was located a golf course - with plans to develop the vacant land surrounding the course. Before purchasing the Property, Stoneybrook met with the mayor and other officials of the City of Columbia and received their verbal assurances of strong support for the annexation of the 190 acres into the City and the re-zoning of the area to permit the building of condominiums.

After Stoneybrook purchased the Property, the city council of Columbia refused to go forward with the annexation and re-zoning until a comprehensive land use plan could be completed against which to evaluate the proposed re-zoning. Stoneybrook filed this action against the City, claiming, in essence, that the City's refusal to act promptly in accord with the verbal "commitment" constitutes an unconstitutional moratorium and, alternatively, that the City is estopped from refusing to re-zone the Property. The trial court dismissed the complaint on the pleadings. Stoneybrook appeals. We affirm.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2010/stoneybrook_072710.pdf