Court reviews whether adverse possession gave appellees title to a parcel of land

EUGENE WILKERSON v. CLAUDE B. McCOY, ET AL. (Tenn. Ct. App. July 26, 2012)

The appellees claim ownership to two tracts of land listed as parcels 4.00 and 4.01 on the Union County Tax Map. They assert ownership through adverse possession as a result of members of their family allegedly farming and paying taxes on the parcels since 1917. The appellant was a bona fide purchaser of parcel 4.00 in 2003. The appellees filed a complaint to quiet title to determine ownership of the land; the appellant countered with a complaint for a declaratory judgment. The trial court consolidated the actions and concluded that the appellees held title to the parcels by adverse possession. The appellant appeals. We reverse.

Opinion available at:
https://www.tba.org/sites/default/files/wilkerson.pdf

Court reviews an administrative decision ordering the demolition of a house

EDWARD LEE CARRUTH v. CITY OF ETOWAH (Tenn. Ct. App. July 25, 2012)

The City of Etowah appeals a decision of the trial court leaving in place an injunction prohibiting the City from demolishing a house owned by the plaintiff, Edward Lee Carruth. The City’s Building Inspector, on behalf of the City, directed that the house be demolished. He acted pursuant to a city ordinance governing the clearing of unsafe structures.

Carruth filed a complaint seeking (1) judicial review of the administrative ruling or, in the alternative, (2) review by writ of certiorari. The trial court issued the writ and entered a temporary restraining order prohibiting the City from demolishing or otherwise destroying the house. Following a bench trial, the court found that (1) there was inadequate proof to sustain the City’s action; (2) Carruth did not receive a hearing from the City prior to the City’s action; (3) the City failed to make findings of fact, as required by statute, in support of its decision; and (4) the cost of repairing the house was less than fifty percent of its value. The City challenges each of the trial court’s determinations and it further challenges the trial court’s conduct of a hearing on a common-law writ of certiorari. Finding no reversible error, we affirm the trial court’s judgment.

Opinion available at:
https://www.tba.org/sites/default/files/carruthe_072512.pdf

Court reviews whether a landlord can be held in contempt for the actions of its tenant

SMITH COUNTY PLANNING COMMISSION v. CARVER TRUCKING, INC. (Tenn. Ct. App. July 12, 2012)

This appeal involves a contempt finding against a closely-held corporation. The defendant closely-held corporation owned real property located on a highway.

The trial court held that the corporation had violated zoning ordinances by maintaining and operating a trucking terminal and salvage yard in an unauthorized area. The trial court enjoined the corporation from maintaining a trucking terminal at this location and directed the corporation to remove junk from the property. The corporation then leased the property to a business associate who continued to operate a trucking terminal on the property and failed to remove the junk. A contempt petition was filed against the defendant corporation.

The trial court determined that the defendant corporation had violated the injunction and was in contempt of court. The defendant corporation now appeals, arguing that the corporation cannot be held in contempt for the actions of the tenant on the property. We affirm.

Opinion available at:
https://www.tba.org/sites/default/files/smithplanning_071212.pdf

Court reviews a case involving the foreclosure of real property

ROSHEAY RAGLAND and wife, THERESA RAGLAND v. OAKLAND DEPOSIT BANK (Tenn. Ct. App. July 12, 2012)

This appeal involves the foreclosure of real property owned by the Appellants. The Appellants filed a request for a temporary and permanent injunction, alleging that the Appellee bank that held the mortgage on the property had violated the Appellants’ rights.

After the Appellants testified at the temporary injunction hearing, the Bank moved for involuntary dismissal and the trial court dismissed the case. Both parties filed post-trial motions regarding possession of the subject property. The appellate record contains no record that either of these motions was adjudicated by the trial court. Accordingly, the judgment of the trial court is not final, and this Court lacks subject matter jurisdiction over this appeal. Dismissed and remanded.

Opinion available at:
https://www.tba.org/sites/default/files/raglandr_071212.pdf

Court reviews whether a neighborhood association president's suit against the board that voted to oust him failed to state a claim upon which relief could be granted

BOBBY MacBRYAN GREEN v. JODI JONES, ET. AL. (Tenn. Ct. App. July 10, 2012)

A neighborhood association president, fearing that members conspired to improperly oust him at an upcoming meeting, filed suit, requesting declaratory relief regarding the proper procedure for removal of a president. Prior to a hearing, the members voted to remove him from office and filed a motion to dismiss, alleging that the complaint failed to state a claim upon which relief could be granted. The court dismissed the complaint and denied a subsequent motion to alter or amend its judgment. The president appeals. We affirm.

Opinion available at:
https://www.tba.org/sites/default/files/greenb_071012.pdf

Court reviews whether defendants breached a Real Estate Sales Agency Contract

PEGGY GIFFIN d/b/a RE/MAX REALTY CENTER, ET AL. v. ANTHONY SAWYER, ET AL. (Tenn. Ct. App. July 3, 2012)

Peggy Giffin d/b/a Re/Max Realty Center and Racia Futrell (collectively “Plaintiffs”) sued Anthony Sawyer and Hope Sawyer alleging, among other things, that the Sawyers had breached a real estate sales agency contract.

After a bench trial, the Trial Court entered its order finding and holding, inter alia, that the Sawyers did not breach the sales agency contract and that Plaintiffs were not entitled to collect a commission under the sales agency contract. Plaintiffs appeal to this Court. We find that the evidence does not preponderate against the Trial Court’s findings, and we affirm.

Opinion available at:
https://www.tba.org/sites/default/files/griffinp_070312.pdf

Court reviews whether a condominium association board candidate has a statutory right to see the ballots from an election

KENNETH J. SIGEL, M.D. v. THE MONARCH CONDOMINIUM ASSOCIATION, INC. (Tenn. Ct. App. June 20, 2012)

This appeal involves the release of ballots for a condominium association election. The plaintiff condominium owner was a candidate for a position on the board of directors for the defendant condominium association. After losing the election, the plaintiff condominium owner requested to audit the vote and see the other members’ written ballots. The condominium association provided a tally sheet reflecting the number of ballots cast for each candidate but declined to release the actual ballots.

The plaintiff then filed this lawsuit, contending that the condominium association had a statutory obligation to release the ballots to him. The plaintiff later filed a motion for summary judgment. The trial court denied the summary judgment motion and dismissed the lawsuit. The plaintiff condominium owner now appeals. We affirm, finding that the plaintiff condominium owner does not have a statutory right to see the association members’ written ballots.

Opinion available at:
https://www.tba.org/sites/default/files/sigelk_062912.pdf

Court reviews whether a mortgage company wrongfully foreclosed on the plaintiff's home

GEORGE CLAY, III., v. FIRST HORIZON HOME LOAN CORPORATION (Tenn. Ct. App. June 26, 2012)

Plaintiff sued defendant mortgage company that held a mortgage on his home, on which defendant foreclosed. Plaintiff's alleged cause of action was that defendant had received money from the U.S. Treasury pursuant to the Troubled Asset Relief Program, and that defendant failed to properly consider him for a home loan modification pursuant to the federal acts and regulations.

Defendant moved to dismiss for failure to state a cause of action and the Trial Court dismissed part of plaintiff's complaint, but denied defendant's motion as to plaintiff's third party beneficiary claim, the negligent implementation of the HAMP claim and the wrongful foreclosure claim. Defendant sought a Tenn. R. App. P. 9 appeal, which was granted by the Trial Court and this Court and we hold that under the federal acts and regulations, there was no provision for a private right of action claim, and reverse so much of the Trial Court's judgment that holds otherwise.

Opinion available at:
https://www.tba.org/sites/default/files/clayg_062612.pdf

Court reviews whether a buyer wrongfully refused to close on an agreement to purchase property

DAVID R. SEATON, ET AL. v. WISE PROPERTIES-TN, LLC (Tenn. Ct. App. June 22, 2012)

This appeal concerns a contract for the purchase and sale of property. The buyer refused to close pursuant to the terms of the contract and stopped payment on its earnest money check. The sellers brought an action for specific performance and breach of contract. The buyer alleged that the sellers breached the contract first. The trial court found in favor of the buyer, holding that because the sellers did not cause title to be examined ten days from the effective date of the contract, the buyer had a right to withdraw the earnest money payment. The sellers appeal. We affirm the judgment of the trial court.

Opinion available at:
https://www.tba.org/sites/default/files/seatond_062212.pdf

Court reviews whether homeowners violated a previous court order that enjoined them from using sulfurous water to water their lawn

JEFFREY R. SMITH, ET AL. v. RICHARD GARVIN AND SERENA GARVIN (Tenn. Ct. App. June 20, 2012)

Homeowners in a subdivision used water from a sulfur well to water their lawn. Neighbors complained about the noxious odor, and when the Homeowners continued to use the sulfurous water, the neighbors sought and obtained an order permanently enjoining them from using their well for irrigation purposes.

Three years later the Homeowners began using the sulfur well to water their lawn again, and the neighbors filed a petition seeking to hold the Homeowners in contempt for violating the court’s order. The Homeowners filed a retaliatory complaint against the neighbors, and the neighbors sought Rule 11 sanctions for having to defend that action.

The trial court consolidated the hearing of the two motions, and following a hearing where testimony and documentary evidence were introduced, the court found the Homeowners had willfully violated the court’s order on at least nine occasions. The court also found the Homeowners’ action was filed in violation of Rule 11 and fined the Homeowners $1,000. The Homeowners appealed, claiming the two motions should not have been heard together and that the evidence did not support the court’s finding of willfulness beyond a reasonable doubt.

We conclude the court did not abuse its discretion in hearing the two motions in the same proceeding, and that the evidence was not insufficient for the court to have found the Homeowners guilty of willfully violating its earlier order beyond a reasonable doubt. We thus affirm the trial court’s judgment.

Opinion available at:
https://www.tba.org/sites/default/files/smithj_062012.pdf

Court reviews a case involving a request for specific performance for a Grant of Right of Way

SEVIER COUNTY BANK v. EILEEN M. DIMECO, ET AL. (Tenn. Ct. App. June 26, 2012)

Sevier County Bank (“the Bank”) sued Eileen M. DiMeco, CitiMortgage, Inc., and First American Title Company seeking specific performance with regard to a Grant of Right of Way and Agreement to Dedicate (“the Agreement”) concerning a right of way to be used as a public road. The Bank filed a motion for summary judgment and after a hearing the Trial Court granted the Bank summary judgment. Ms. DiMeco appeals to this Court. We find and hold that there are no genuine issues of material fact and that the Bank is entitled to summary judgment as a matter of law, and we affirm. We further find this appeal frivolous and award the Bank attorney’s fees on appeal.

Opinion available at:
https://www.tba.org/sites/default/files/seviercountybank_062612.pdf

Court reviews whether trial court properly dismissed a case involving an easement across a parcel of land

LYNN ROGERS v. JON ROACH, ET AL. (Tenn. Ct. App. June 20, 2012)

Landowner owns property that was once part of a single parcel of land. The only way she can access her property is over a gravel roadway approximately nine feet wide that crosses through her neighbors’ property. One of Landowner’s neighbors erected fence posts near the roadway that Landowner alleges interfere with her ability to pull her horse trailers back and forth to her property.

Landowner filed a complaint alleging she has the right to a forty foot easement across her neighbors’ property. After Landowner presented her proof at trial, Defendant neighbors moved for involuntary dismissal pursuant to Tenn. R. Civ. P. 41.02. The trial court dismissed Landowner’s complaint.

We reverse the dismissal as to the Landowner’s claim for interference with her use and enjoyment of the easement because she presented evidence to establish the elements of that claim. We also reverse the dismissal of the claim for damages resulting from the interference. Dismissal of the other claims by Landowner is affirmed. We remand this case for further proceedings.

Opinion available at:
https://www.tba.org/sites/default/files/rogersl_062012.pdf

Atlanta Journal-Constitution: Georgia Supreme Court finds for gated community owner in gator case

This week, the Supreme Court of Georgia ruled in favor of a gated community in a case involving the death of a woman who was attacked by an alligator. The woman's heirs argued that the community didn't undertake reasonable steps to prevent people from being attacked and killed by alligators on its property. However, the Court held that the woman had knowledge that alligators were present in the community and in nearby lagoons and therefore, she had as much knowledge as the community did. For this reason, they upheld the community's motion for summary judgment.

Read more about this story at the AJC's website.

Court reviews breach of contract, fraudulent inducement, and misrepresentation claims in a case involving the sale of real property

ROZBEH ZAIRE v. AMIR ROSHAN-FAR (Tenn. Ct. App. June 1, 2012)

This appeal arises out of a lawsuit in which plaintiff sought recovery on claims of fraudulent inducement, breach of contract, negligent misrepresentation, and intentional misrepresentation with respect to the purchase of real property; the trial court awarded judgment to plaintiff only on the claim for negligent misrepresentation only. Both parties appeal. We affirm the judgement in all respects.

Opinion available at:
https://www.tba.org/sites/default/files/zairer_060112.pdf

Court reviews a request to rescind the sale of a subdivision lot

MICHAEL J. D’ALESSANDRO v. LAKE DEVELOPERS, II, LLC (Tenn. Ct. App. February 22, 2012>

In 2005, Plaintiff purchased a subdivision lot believing it could later be traded toward the purchase of a condominium. Because no condominiums had been built by 2010, Plaintiff filed suit, seeking to rescind the sale and to recover damages. The trial court rescinded the warranty deed and awarded Plaintiff a return of the purchase price, plus city and county taxes paid and prejudgment interest from the filing of his complaint. Finding no failure of consideration, we reverse the trial court’s rescission of the warranty deed and its damage awards. We affirm the trial court’s dismissal of Plaintiff’s breach of warranty, negligent misrepresentation, promissory fraud, and Tennessee Consumer Protection Act claims. All remaining issues are deemed either waived or pretermitted.

Opinion available at:
https://www.tba.org/sites/default/files/dalessandrom.pdf