Court reviews a case involving real property subject to foreclosures and tax sales

TODD MARSH, ET AL. v. LARRY A. STORIE, ET AL. (Tenn. Ct. App. January 26, 2012)

Todd Marsh and Kari Marsh ("Plaintiffs") sued Larry A. Storie ("Storie") and First Tennessee Bank National Association ("First TN Bank") with regard to, among other things, ownership of real property which had been the subject of both a tax sale and a foreclosure sale. After a hearing, the Trial Court entered an order on January 4, 2011 granting partial summary judgment dismissing First TN Bank from the case, and certifying the judgment as final as to First TN Bank pursuant to Tenn. R. Civ. P. 54.02. Plaintiffs appeal the dismissal of their claims against First TN Bank. We affirm.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2012/marsht_012612.pdf

Court reviews a boundary line dispute between parties who hired their own surveyors

MARY LEE MARTIN v. S. DALE COPELAND (Tenn. Ct. App. January 20, 2012)

In this boundary line dispute, plaintiff sued defendant, the adjoining property owner, and defendant countersued. Each of the parties employed their own surveyors who testified at the trial, and the Trial Court ultimately established a boundary line between the parties. Defendant appealed to this Court. We affirm the Judgment of the Trial Court.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2012/martinn_013012.pdf

Court reviews a case involving the approval of a planned unit development

CK DEVELOPMENT, LLC v. TOWN OF NOLENSVILLE, ET AL. (Tenn. Ct. App. January 9, 2012)

The Developer of a Planned Unit Development in Nolensville sought final approval from the planning commission of phase 7 of the development. The planning commission conditioned its approval of the plan on the developer's agreement to construct the roads in phase 7 in accordance with more recent road standards that were adopted in 2007. The developer filed a petition for writ of certiorari claiming it had vested rights in the earlier road standards and that complying with the more rigorous standards would require it to spend more money than it had originally planned.

The trial court agreed with the developer and concluded that it had vested rights in the earlier road standards. The town appealed.

We reverse the trial court's decision because the developer did not rely on any final governmental approval, the application of the improved road standards was not a zoning change, and the developer has neither engaged in substantial construction of phase 7 nor incurred substantial liabilities with respect to phase 7. We also reject the developer's argument that the planning commission exceeded its jurisdiction by acting in a legislative rather than an administrative capacity when it determined the developer was required to comply with the 2007 road standards.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2012/ckdevelopment_010912.pdf

Court reviews whether the terms of a sublease makes the sublessee liable for paying property taxes

2850 PARKWAY GENERAL PARTNERSHIP, v. C. DAN SCOTT, et al. (Tenn. Ct. App. January 5, 2012)

Plaintiff brought an action for declaratory judgment, asking the Court to declare that while plaintiff's sublease required it to pay the property taxes, the master lease required the lessor to pay the property taxes, and asked the Court to declare the lessor liable for the property taxes. Following trial, the Trial Court declared that the sublessee was liable for the property taxes, as it agreed to pay under the sublease. On appeal, we affirm the Judgment of the Trial Court on the grounds that under the fact of this case, plaintiff is equitably estopped to avoid paying property taxes, as agreed to in the sublease.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2012/2850parkway_010512.pdf

TN Supreme Court determines the proper procedure for obtaining judicial review of a local legislative body's land use decision under the Jackson Law

DAVE BRUNDAGE ET AL. v. CUMBERLAND COUNTY ET AL. (Tenn. December 19, 2011)

This appeal calls into question the proper procedure for obtaining judicial review of a local legislative body's land use decision under the "Jackson Law," Tenn. Code Ann. sections 68-211-701 to -707 (2011). The opponents of a coal ash landfill, approved by the Cumberland County Commission, filed a petition for a statutory writ of certiorari in the Chancery Court for Cumberland County seeking judicial review of the Commission's decision. The trial court dismissed the petition because it was not verified as required by Tenn. Code Ann. sections 27-8-106 (2000). The Court of Appeals affirmed. Brundage v. Cumberland Cnty., No. E2010- 00089-COA-R3-CV, 2010 WL 3025538, at *4 (Tenn. Ct. App. Aug. 4, 2010).

We granted the petitioners' application for permission to appeal because the Jackson Law does not specifically define the procedure for seeking judicial review of a local legislative body's decisions. We have determined (1) that a local legislative body's decision under the Jackson Law may be challenged either by a petition for a statutory writ of certiorari or by a complaint for declaratory judgment and (2) that the trial court and the Court of Appeals erred by failing to treat the statutory petition for writ of certiorari as a complaint for declaratory judgment.

Opinion available at:
http://www.tba2.org/tba_files/TSC/2011/brundaged_121911.pdf

Court reviews whether a home owners' association properly amended its restrictive covenants to increase the amount of dues

GRAND VALLEY LAKES PROPERTY OWNERS ASSOCIATION, INC. v. DENNIS BURROW (Tenn. Ct. App. December 28, 2011)

Appellant, the owner of several lots in a subdivision managed and maintained by the Appellee home owners association, appeals the trial court's grant of summary judgment in favor of Appellee on the question of whether Appellant owed an increase in dues and fees on his lots, and the denial of his counter-claims for fraud, violation of the Tennessee Consumer Protection Act, outrageous conduct, and invalidity of the restrictive covenants on grounds that these causes of action were barred by the applicable statutes of limitation or the doctrine of laches.

We conclude that the Appellee followed the correct procedure in amending its restrictive covenants to increase the amount of dues. However, because the trial court did not make findings, as required by Tennessee Rule of Civil Procedure 56.04, concerning the grounds for its application of laches, we cannot review the question of whether Appellant's counter-claims were properly dismissed. Vacated and remanded.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/grandvalley_122811.pdf

Court reviews a case involving the alleged fraudulent concealment of flooding in a house that was sold by defendants

G. KENNETH CAMPBELL ET AL. v. JAMES E. HUDDLESTON ET AL. (Tenn. Ct. App. December 27, 2011)

James E. Huddleston and his wife, Patricia M. Huddleston ("the Sellers"), sold their house to G. Kenneth Campbell and his wife, Teresa J. Campbell ("the Buyers"). The Buyers inquired of the Sellers as to whether there had been flooding in the house. The Sellers disclosed that there had been one flood in the basement to a depth of six inches.

During the course of some later renovations, the Buyers became aware the Sellers had indicated, on a wall stud, that there had been a 1998 flood in the basement to a depth of 38 inches. They also learned the Sellers had made an insurance claim for another flood in 2003 that was nearly one-foot deep.

The Buyers filed this tort action sounding in fraudulent concealment and fraudulent misrepresentation. The Sellers filed a motion for summary judgment asserting that, since the Buyers were made aware of the one "six inch" flood, they could not have relied on the misrepresentations with respect to the full extent of the two flooding events. The trial court granted the motion and dismissed the case. The Buyers appeal. We vacate the order granting summary judgment and remand for further proceedings before a different trial judge.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/campbellg_122711.pdf

Court determines the existence of an easement

CHARLIE LEE INGRAM v. REBECCA AND RANDY WASSON (Tenn. Ct. App. December 22, 2011)

This appeal concerns the existence of an easement. The dispute between the two adjoining landowners began after the defendant landowners blocked the plaintiff neighboring landowner's access to a roadway crossing over the defendants' property. The plaintiff landowner filed this action seeking condemnation or a finding of an implied easement for access to the roadway over the defendants' property, arguing that his property was landlocked. Upon the admission into evidence of several affidavits, the trial court found both an easement implied from prior use and, in the alternative, an easement created by necessity. The defendant landowners now appeal. We affirm the decision of the trial court.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/ingramc_112211.pdf

Court reviews whether plantiff properly exercised its right to terminate a contract for the sale of real property

CAMERON GENERAL CONTRACTORS, INC. v. KINGSTON PIKE, LLC (Tenn. Ct. App. December 21, 2011)

Cameron General Contractors, Inc., a Nebraska corporation ("Cameron"), sued Kingston Pike, LLC, a Georgia limited liability company ("Kingston Pike"), for breach of a contract concerning the sale of real property located in Knoxville, Tennessee. Prior to trial, Cameron elected to exercise its contractual right to terminate the contract, and the case proceeded to trial on the issue of damages. After a bench trial, the Trial Court entered its order finding and holding, inter alia, that the contract did not limit Cameron to the return of its earnest money, and granting Cameron a judgment against Kingston Pike for damages in the amount of $872,418.22, plus attorney's fees of $137,656.56. Kingston Pike appeals to this Court. We find and hold that the contract at issue clearly and unambiguously provides that once Cameron chose to terminate the contract, Cameron's sole remedy for Kingston Pike's breach was a return of Cameron's earnest money deposit. We, therefore, reverse the Trial Court's October 28, 2010 order.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/cameron_122111.pdf

Court reviews whether plaintiffs were fraudulently induced to sign a sewer easement agreement with the City of Memphis

FRANCES SEWARD BENNETT and DON SEWARD v. CITY OF MEMPHIS (Tenn. Ct. App. December 21, 2011)

Plaintiffs sued the City of Memphis, claiming that they were fraudulently induced to sign a sewer easement agreement. The trial court granted summary judgment to the City of Memphis. We reverse and remand for further proceedings.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/bennettf_122111.pdf

Court reviews a breach of contract claim against a landlord

JOHN RUFF v. REDDOCH MANAGEMENT, LLC, ET AL. (Tenn. Ct. App. December 1, 2011)

Tenant filed suit against his former landlord and the current owner of premises that tenant leased alleging, inter alia, breach of contract and violations of the Uniform Residential Landlord and Tenant Act. Trial court dismissed tenant's claim against the former landlord holding that the landlord was exempt from suit pursuant to Tenn. Code Ann. section 66-28-305. The court dismissed the claim against the current owner because tenant failed to comply with the fourteen day pre-suit notice requirement at Tenn. Code Ann. section 66-28-501(a). Finding no error, we affirm the trial court.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/ruffj_120111.pdf

Court reviews a nuisance lawsuit involving a loud Air Conditioning Condenser Unit

CHANDRA PEARSON v. VICTOR ROSS (Tenn. Ct. App. December 28, 2011)

This appeal involves a nuisance claim. The parties own adjoining homes in a neighborhood of zero-lot line homes. The defendant's air conditioning condenser unit is outside his home, between the parties' homes. The plaintiff filed this lawsuit against the defendant, alleging that the noise of the defendant's air conditioning unit constituted a nuisance, and seeking abatement of the nuisance, money damages, and injunctive relief. After a bench trial, the trial court held in favor of the defendant. The plaintiff now appeals. We affirm.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/pearsonc_122811.pdf

Determination of Navigability and Ownership of Land Beneath a River

Determination of Navigability and Ownership of Land Beneath a River (TN Attorney General Opinions, November 17, 2011)

In this opinion, the Attorney General discussed the following questions:
1. When is a river legally deemed navigable, and how does such a determination affect ownership of the land beneath the river?
2. Assuming a river is deemed navigable by the U.S. Army Corps of Engineers, then is the river navigable in a legal sense?

Question 1
After discussing the applicable case law, the Attorney General concluded that whether a waterway is legally navigable is a question of fact to be determined by a jury. The AG states that the legal navigability of a waterway determines whether the land beneath the water may be privately owned--if the waterway is not legally navigable, the land beneath it may be privately owned, but if it is navigable, the bed of the waterway, to the low-water mark, is publicly owned by the State. However, the public maintains a right to "free and uninterrupted use" of the waterway for purposes of transportation and navigation even if a waterway is deemed non-navigable.

Question 2
With regards to the second question, the Attorney General refers to the Code of Federal Regulations, which states that determinations of navigability by the U.S. Army Corps of Engineers is binding on the Corps, but not on federal courts. He then refers to the Tennessee Court of Appeals' City of Murfreesboro v. Pierce Hardy Real Estate, Inc. case, which concludes that if the U.S. Army Corps of Engineers' decision cannot bind federal courts, it also cannot bind state courts. Thus, although the U.S. Army Corps of Engineers' determination of navigability can be considered by a jury, the jury is not bound by that determination and may find contrary to the Corps' determination.


The AG's opinion can be read in its entirety at:
http://www.tba2.org/tba_files/AG/2011/ag_11_75.pdf

Court reviews a mortgage priority dispute involving a scrivener's error on the deed of trust

ABN AMRO MORTGAGE GROUP, INC. v. SOUTHERN SECURITY FEDERAL CREDIT UNION (Tenn. Ct. App. November 17, 2011)

Appellant, the second mortgage holder on the subject property, appeals the trial court's determination that Appellee held a valid first mortgage on the property, when Appellee's mortgage was taken under a deed of trust that contained a scrivener's error that incorrectly identified the property's lot number.

The trial court held that: (1) the scrivener's error was not fatal to Appellant's deed of trust as the instrument otherwise clearly identified the property; (2) Appellant's mortgage was superior to Appellee's; and (3) Appellee's bid at Appellant's foreclosure sale created a valid contract, under which Appellee owed Appellant the purchase price. Finding no error, we affirm.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/abnamro_111711.pdf

Making Like-Kind Exchanges (1031) in Real Estate Used for Business or Investment

If you have real estate used for business or investment, you may exchange that property for another of “like kind” without recognizing a gain or loss under the tax codes. IRS Code Section 1031 provides for the exchange. There must be a “qualified intermediary” between the exchangers, a role that we are happy to perform at the Adams Law Firm. Please give us a call, if you are interested in learning more about this transaction.

Find more information at the IRS website: http://www.irs.gov/businesses/small/industries/article/0,,id=98491,00.html