GRAND VALLEY LAKES PROPERTY OWNERS’ ASSOCIATION, INC. v. HAROLD R. GUNN AND PATSY R. GUNN (Tenn. Ct. App. April 13, 2009).
This is an appeal from the grant of a voluntary dismissal. The plaintiff homeowners’ association sued the defendants in general sessions court for dues owed. The homeowners’ association was awarded a judgment. The defendants appealed to the circuit court below, seeking a de novo hearing. For several years, the appeal remained pending with no activity. In the meantime, the defendants sold the subject property. The judgment due to the homeowners’ association was paid by the purchaser of the subject property to remove any cloud on the title. Having been paid, the homeowners’ association filed a notice of satisfaction of judgment in the circuit court. The defendants filed a motion to set aside the satisfaction of judgment. The circuit court entered an order dismissing the defendants’ appeal. The circuit court later denied the defendants’ motion to set aside the satisfaction of judgment. From that order, the defendants now appeal. We find that the circuit court order is not final and appealable. Therefore, we dismiss the defendants’ appeal for lack of jurisdiction.
Opinion may be found at the TBA website: http://www.tba2.org/tba_files/TCA/2009/grandvalleylakes_041309.pdf
“The Gunns’ notice of appeal was filed within thirty days of the circuit court’s May 12, 2008 order. In the May 12 order, however, the circuit court did not resolve Grand Valley’s request for attorney’s fees contained in Grand Valley’s response to the Gunns’ motion to set aside the satisfaction of judgment. As we have stated, except as otherwise permitted in Rule 9 and in Rule 54.02, an order adjudicating fewer than all the claims of the parties is not a final, appealable order. Tenn. R. App. P. 3(a); Tenn. R. Civ. P. 54.02. Because the trial court did not resolve this issue in the May 12, 2008 order, the order is not final and appealable.” Id.
Wednesday, June 3, 2009
Courts finds that mother possessed requisite mental capacity for power of attorney; no undue influence; subsequent sale to step-daughter was upheld
BILLY DICKSON, JR. v. DANNELLA LONG, ET AL. (Tenn. Ct. App. April 9, 2009).
Son brought action to set aside the conveyance of real property from his mother to her step-daughter pursuant to the powers granted in a limited power of attorney naming mother’s step-son as attorney- in-fact. Son alleged that his mother did not possess the requisite mental capacity to sign the power of attorney and was unduly influenced by the step-daughter in signing the power of attorney. The trial court upheld the validity of the power of attorney and subsequent conveyance, finding mother possessed the requisite mental capacity to sign the power of attorney and step-daughter exerted no undue influence over mother to sign the power of attorney. Finding no reversible error, we affirm.
Opinion may be found at the TBA website: http://www.tba2.org/tba_files/TCA/2009/dicksonb_040909.pdf
“We also do not find that the apparent errors in the power of attorney referencing Irvin Cage and Ms. Long as Ms. Cage’s children prove the alleged mental incompetence of Ms. Cage. The trial court found that the power of attorney was prepared at the request of Pam Crosby of First Union National Bank and drafted by the Bank’s legal counsel. Ms. Cage’s power of attorney mirrored that executed by her husband on the same day. As Irvin Cage and Dannella Long were the children of Dorris Cage, the fact that the power of attorney signed by Ms. Cage identified her step-children as her children demonstrates only that the person who prepared the power was not aware of the precise family relationship of the parties. We do not find the existence of the errors or the fact that Ms. Cage signed a power of attorney referring to her step-children of more than a decade as her children, or even “only other child,” is not “clear, cogent and convincing proof,” [t]hat on October 17, 1996, Ms. Cage did not understand the nature, extent, character and effect of the transaction.” Id.
Son brought action to set aside the conveyance of real property from his mother to her step-daughter pursuant to the powers granted in a limited power of attorney naming mother’s step-son as attorney- in-fact. Son alleged that his mother did not possess the requisite mental capacity to sign the power of attorney and was unduly influenced by the step-daughter in signing the power of attorney. The trial court upheld the validity of the power of attorney and subsequent conveyance, finding mother possessed the requisite mental capacity to sign the power of attorney and step-daughter exerted no undue influence over mother to sign the power of attorney. Finding no reversible error, we affirm.
Opinion may be found at the TBA website: http://www.tba2.org/tba_files/TCA/2009/dicksonb_040909.pdf
“We also do not find that the apparent errors in the power of attorney referencing Irvin Cage and Ms. Long as Ms. Cage’s children prove the alleged mental incompetence of Ms. Cage. The trial court found that the power of attorney was prepared at the request of Pam Crosby of First Union National Bank and drafted by the Bank’s legal counsel. Ms. Cage’s power of attorney mirrored that executed by her husband on the same day. As Irvin Cage and Dannella Long were the children of Dorris Cage, the fact that the power of attorney signed by Ms. Cage identified her step-children as her children demonstrates only that the person who prepared the power was not aware of the precise family relationship of the parties. We do not find the existence of the errors or the fact that Ms. Cage signed a power of attorney referring to her step-children of more than a decade as her children, or even “only other child,” is not “clear, cogent and convincing proof,” [t]hat on October 17, 1996, Ms. Cage did not understand the nature, extent, character and effect of the transaction.” Id.
Tuesday, June 2, 2009
Farm pasture used as airstrip not prohibited by zoning regulations
HARRY ASKEY, ET AL. v. MAURY COUNTY BOARD OF ZONING APPEALS, AN ADMINISTRATIVE BODY FORMED UNDER THE LAWS OF THE STATE OF TENNESSEE AND MAURY COUNTY, TENNESSEE (Tenn. Ct. App. March 31, 2009)
A local zoning board found that use of a pasture as a private airstrip violated the applicable zoning restrictions. In an appeal by the landowner, the trial court found the board erred since the permitted use “recreational facility” applied to a private airstrip. We affirm the trial court.
Opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/askeyh_033109.pdf
“The A-2 zoning regulation by its terms allows the use. The A-2 zoning regulation allows use of the property for “recreational facilities” in Section 5.042(b)(9). It is not disputed that the Askeys use the airstrip for purely personal pursuits. The trial court noted that “recreational facilities” was not defined and looked to the definition of “recreational use” in Section 5.042 b. 9 which speaks in terms of a “facility” which is “intended for leisure time pursuits.” While this definition adds very little substantive meaning, it does not detract from, but adds to, the conclusion that the Askeys’ airstrip is a recreational facility. When the language of an ordinance is clear, the courts will enforce the ordinance as written. 421 Corporation v. Metropolitan Government of Nashville and Davidson County, 36 S.W.3d 469, 475 (Tenn. Ct. App. 2000). Consequently, based on the plain meaning of the words used in the ordinance, the Askeys’ use is permitted.” Id.
“In addition to the rules of statutory construction applicable to ordinances, there are also rules of construction that apply to zoning ordinances in particular. Courts must construe zoning ordinances “with some deference toward a property owner’s right to the free use of his or her property.” Lion’s Head, 968 S.W.2d at 301. This Court will seek to interpret a zoning ordinance in a way that is “most consistent with the ordinance’s general purposes,” but any ambiguity will be resolved “in favor of the property owner’s right to the unrestricted use of his or her property.” Id.
A local zoning board found that use of a pasture as a private airstrip violated the applicable zoning restrictions. In an appeal by the landowner, the trial court found the board erred since the permitted use “recreational facility” applied to a private airstrip. We affirm the trial court.
Opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/askeyh_033109.pdf
“The A-2 zoning regulation by its terms allows the use. The A-2 zoning regulation allows use of the property for “recreational facilities” in Section 5.042(b)(9). It is not disputed that the Askeys use the airstrip for purely personal pursuits. The trial court noted that “recreational facilities” was not defined and looked to the definition of “recreational use” in Section 5.042 b. 9 which speaks in terms of a “facility” which is “intended for leisure time pursuits.” While this definition adds very little substantive meaning, it does not detract from, but adds to, the conclusion that the Askeys’ airstrip is a recreational facility. When the language of an ordinance is clear, the courts will enforce the ordinance as written. 421 Corporation v. Metropolitan Government of Nashville and Davidson County, 36 S.W.3d 469, 475 (Tenn. Ct. App. 2000). Consequently, based on the plain meaning of the words used in the ordinance, the Askeys’ use is permitted.” Id.
“In addition to the rules of statutory construction applicable to ordinances, there are also rules of construction that apply to zoning ordinances in particular. Courts must construe zoning ordinances “with some deference toward a property owner’s right to the free use of his or her property.” Lion’s Head, 968 S.W.2d at 301. This Court will seek to interpret a zoning ordinance in a way that is “most consistent with the ordinance’s general purposes,” but any ambiguity will be resolved “in favor of the property owner’s right to the unrestricted use of his or her property.” Id.
Land owners are not liable for fraudulent misrepresentations made by real estate agents that are not a party to the lawsuit
ARTHUR CREECH ET AL. v. ROBERT R. ADDINGTON ET AL. (Tenn. March 31, 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.
Opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TSC/2009/creecha_033109.pdf
“When an agency relationship has been established, the principal may be bound by the acts of the agent performed on the principal’s behalf and within the actual or apparent scope of the agency. Boren ex rel. Boren v. Weeks, 251 S.W.3d 426, 432 (Tenn. 2008); White v. Revco Disc. Drug Ctrs., Inc., 33 S.W.3d 713, 723 (Tenn. 2000). The law does not require that the principal either expressly direct or have knowledge of the agent’s tortious act; rather, it is enough that the agent was acting in the business of his superior. White, 33 S.W.3d at 724. “ Id.
“[A] principal may not be held vicariously liable under the doctrine of respondeat superior based upon the acts of its agent in three instances: (1) when the agent has been exonerated by an adjudication of non-liability, (2) when the right of action against the agent is extinguished by operation of law, or (3) when the injured party extinguishes the agent’s liability by conferring an affirmative, substantive right upon the agent that precludes assessment of liability against the agent.” Id.
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.
Opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TSC/2009/creecha_033109.pdf
“When an agency relationship has been established, the principal may be bound by the acts of the agent performed on the principal’s behalf and within the actual or apparent scope of the agency. Boren ex rel. Boren v. Weeks, 251 S.W.3d 426, 432 (Tenn. 2008); White v. Revco Disc. Drug Ctrs., Inc., 33 S.W.3d 713, 723 (Tenn. 2000). The law does not require that the principal either expressly direct or have knowledge of the agent’s tortious act; rather, it is enough that the agent was acting in the business of his superior. White, 33 S.W.3d at 724. “ Id.
“[A] principal may not be held vicariously liable under the doctrine of respondeat superior based upon the acts of its agent in three instances: (1) when the agent has been exonerated by an adjudication of non-liability, (2) when the right of action against the agent is extinguished by operation of law, or (3) when the injured party extinguishes the agent’s liability by conferring an affirmative, substantive right upon the agent that precludes assessment of liability against the agent.” Id.
BARBARA AUSTIN, ET AL. v. STEVE ALLEN, ET AL. (Tenn. Ct. App. March 30, 2009).
Plaintiffs' complaint raised several causes of action relating to the removal of Defendants' fence and the enforcement of a drainage easement. The jury found that the Plaintiffs were not entitled to relief under any cause of action. The trial court entered judgment in accordance with the jury's verdict and awarded discretionary costs to the Defendants. On appeal, the Plaintiffs challenge the verdict form and jury instructions as improper; the lack of material evidence in support of the verdict; the trial court's abuse of its role as thirteenth juror; the trial court's reliance on an affidavit containing false statements in denying Plaintiffs' motion for partial summary judgment; the trial court's abuse of its discretion in making evidentiary and argument decisions; and the award of costs as improper. Finding that the award of costs under Rule 68 was an abuse of discretion, we vacate the award; we modify the award of costs under Rule 54. The decision of the trial court in all other respects is affirmed.
Opinion may be found at the TBA website:
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METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY v. THE ALLEN FAMILY TRUST ET AL. (Tenn. Ct, App. March 30, 2009).
Metropolitan government instituted condemnation proceedings against property owners to acquire an easement for the construction of a sewer line. The trial court granted Metro's request for an order of possession. On appeal, property owners challenge the trial court's determination that the power of eminent domain was being exercised for a public use. We affirm the trial court's decision.
Metropolitan government instituted condemnation proceedings against property owners to acquire an easement for the construction of a sewer line. The trial court granted Metro's request for an order of possession. On appeal, property owners challenge the trial court's determination that the power of eminent domain was being exercised for a public use. We affirm the trial court's decision.
Opinion may be found at the TBA website:
Court finds undocumented and brief foreclosure on courthouse steps sufficient
ROBERT RICHMOND and wife, DARLENE RICHMOND, v. HSBC BANK, USA, as trustee (Tenn. Ct. App. March 26, 2009).
Plaintiffs brought this action to enjoin enforcement of a detainer judgment and to nullify a foreclosure on their home on the basis that defendant failed to offer the property for sale at the courthouse door, in accordance with the notice of foreclosure. The Trial Court held plaintiffs failed to prove their allegations and found the foreclosure sale was properly held. Plaintiffs appealed. We affirm.
Opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/richmondr_032609.pdf
“Plaintiffs argue the weight of the evidence does not support the Trial Court’s conclusion that this foreclosure sale actually took place, because plaintiff’s presence at the courthouse was corroborated by Rev. Acres, and because Barta did not bill for her time nor present any documentation that she was actually there. “ Id.
“The evidence does not preponderate against the Trial Court’s finding that the sale actually took place, as Barta testified, and that Richmond was around the courthouse but was not present for the sale. Tenn. R. App. P. 13(d).” Id.
“The testimony of the witnesses can be reconciled. Plaintiff Richmond admitted he was not sitting and waiting on the courthouse steps for the whole time between 11:25 and 12:15, but rather was walking around and going in and out of other businesses and offices, while “keeping watch” on the courthouse steps. He also admitted that he was expecting to see an event with a podium and at least 2 or 3 people. The evidence demonstrated that plaintiff Richmond could have easily misjudged the time and missed the sale which only took a couple of minutes to conduct.” Id.
Plaintiffs brought this action to enjoin enforcement of a detainer judgment and to nullify a foreclosure on their home on the basis that defendant failed to offer the property for sale at the courthouse door, in accordance with the notice of foreclosure. The Trial Court held plaintiffs failed to prove their allegations and found the foreclosure sale was properly held. Plaintiffs appealed. We affirm.
Opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/richmondr_032609.pdf
“Plaintiffs argue the weight of the evidence does not support the Trial Court’s conclusion that this foreclosure sale actually took place, because plaintiff’s presence at the courthouse was corroborated by Rev. Acres, and because Barta did not bill for her time nor present any documentation that she was actually there. “ Id.
“The evidence does not preponderate against the Trial Court’s finding that the sale actually took place, as Barta testified, and that Richmond was around the courthouse but was not present for the sale. Tenn. R. App. P. 13(d).” Id.
“The testimony of the witnesses can be reconciled. Plaintiff Richmond admitted he was not sitting and waiting on the courthouse steps for the whole time between 11:25 and 12:15, but rather was walking around and going in and out of other businesses and offices, while “keeping watch” on the courthouse steps. He also admitted that he was expecting to see an event with a podium and at least 2 or 3 people. The evidence demonstrated that plaintiff Richmond could have easily misjudged the time and missed the sale which only took a couple of minutes to conduct.” Id.
Cemetery owners who wish to limit who may be buried must manifest the specific intent
EDWIN O. MARTIN, ET AL. v. CARL NASH, ET AL. (Tenn. Ct. App. March 23, 2009)
Members of family in whose name a cemetery was established brought suit against owners of property surrounding the cemetery seeking removal of a cloud upon their title to the cemetery, injunctive relief and damages. The trial court declared the boundaries of the original cemetery and limited those entitled to be buried therein to the family members; allowed that members of the general public were permitted to be buried in land added to the original cemetery tract; and appointed trustees to manage the cemetery as established under both conveyances. Family members appeal, contending that trial court erred in setting the cemetery boundary; in disregarding proof of cost of repairing fence which had been removed by one defendant; and in refusing to hear testimony as to the trust fund established for the maintenance of the cemetery. Finding no error, we affirm the decision of the trial court in all respects.
Opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/martine_032309.pdf
“The preponderance of the evidence shows two separate conveyances of land for purposes of establishing the cemetery, one in 1930 and one in 1995. The proof is also clear from the 1995 deed, as well as the testimony of Mr. Nash, that there was no limitation of those who could be buried in Phase II to the descendants of A. A. Martin. The entire evidence shows Mr. Nash’s intention, after he acquired the property, to respect the establishment of the cemetery in 1930, to preserve and maintain it, and to expand it to allow for increasing numbers of Martin family members and others who were buried around the original cemetery.” Id.
Members of family in whose name a cemetery was established brought suit against owners of property surrounding the cemetery seeking removal of a cloud upon their title to the cemetery, injunctive relief and damages. The trial court declared the boundaries of the original cemetery and limited those entitled to be buried therein to the family members; allowed that members of the general public were permitted to be buried in land added to the original cemetery tract; and appointed trustees to manage the cemetery as established under both conveyances. Family members appeal, contending that trial court erred in setting the cemetery boundary; in disregarding proof of cost of repairing fence which had been removed by one defendant; and in refusing to hear testimony as to the trust fund established for the maintenance of the cemetery. Finding no error, we affirm the decision of the trial court in all respects.
Opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/martine_032309.pdf
“The preponderance of the evidence shows two separate conveyances of land for purposes of establishing the cemetery, one in 1930 and one in 1995. The proof is also clear from the 1995 deed, as well as the testimony of Mr. Nash, that there was no limitation of those who could be buried in Phase II to the descendants of A. A. Martin. The entire evidence shows Mr. Nash’s intention, after he acquired the property, to respect the establishment of the cemetery in 1930, to preserve and maintain it, and to expand it to allow for increasing numbers of Martin family members and others who were buried around the original cemetery.” Id.
In the absence of language specifying how and when a lessee may extend the term of the lease, holding over and continued payment extends lease
MIKE ELLIS v. PAULINE S. SPROUSE RESIDUARY TRUST ET AL. (Tenn. March 23, 2009).
This appeal involves the exercise of an option to extend a lease that did not specify how or when the option should be exercised. Approximately two and one-half years after the lessee believed he had exercised the option to extend the lease, the lessor sold the property to a third party who was aware that the lessee was actively farming the property. Thereafter, the new owner trespassed on the property and ordered the lessee to vacate. The lessee complied but filed suit in the Circuit Court for Knox County seeking damages for the new owner's trespass and for the profits he would have earned had he been permitted to continue to farm the property for the remaining term of the lease. A jury determined that the lessee had effectively extended the lease and that the new owner had actual notice of the lease. Accordingly, the jury awarded the lessee $82,534 in compensatory damages and $30,000 in punitive damages. The owner appealed. The Court of Appeals upheld the jury's $534 award for damages caused by the owner's trespass but vacated the remainder of the award of compensatory damages after concluding that the lessee had not effectively extended the lease. The court also vacated the punitive damages award because it was excessive in comparison to the reduced compensatory damages award and remanded the case for a new trial on punitive damages. Ellis v. Pauline S. Sprouse Residuary Trust, No. E2006-01771-COA-R3-CV, 2007 WL 3121666 (Tenn. Ct. App. Oct. 26, 2007). We granted the lessee's application for permission to appeal. In accordance with Carhart v. White Mantel & Tile Co., 122 Tenn. 455, 123 S.W. 747 (1909), we have determined that the lessee effectively extended the lease by holding over and continuing to pay the rent required by the lease. Accordingly, we reverse the judgment of the Court of Appeals and remand the case to the Court of Appeals for further proceedings consistent with this opinion.
This appeal involves the exercise of an option to extend a lease that did not specify how or when the option should be exercised. Approximately two and one-half years after the lessee believed he had exercised the option to extend the lease, the lessor sold the property to a third party who was aware that the lessee was actively farming the property. Thereafter, the new owner trespassed on the property and ordered the lessee to vacate. The lessee complied but filed suit in the Circuit Court for Knox County seeking damages for the new owner's trespass and for the profits he would have earned had he been permitted to continue to farm the property for the remaining term of the lease. A jury determined that the lessee had effectively extended the lease and that the new owner had actual notice of the lease. Accordingly, the jury awarded the lessee $82,534 in compensatory damages and $30,000 in punitive damages. The owner appealed. The Court of Appeals upheld the jury's $534 award for damages caused by the owner's trespass but vacated the remainder of the award of compensatory damages after concluding that the lessee had not effectively extended the lease. The court also vacated the punitive damages award because it was excessive in comparison to the reduced compensatory damages award and remanded the case for a new trial on punitive damages. Ellis v. Pauline S. Sprouse Residuary Trust, No. E2006-01771-COA-R3-CV, 2007 WL 3121666 (Tenn. Ct. App. Oct. 26, 2007). We granted the lessee's application for permission to appeal. In accordance with Carhart v. White Mantel & Tile Co., 122 Tenn. 455, 123 S.W. 747 (1909), we have determined that the lessee effectively extended the lease by holding over and continuing to pay the rent required by the lease. Accordingly, we reverse the judgment of the Court of Appeals and remand the case to the Court of Appeals for further proceedings consistent with this opinion.
Opinion my be found at the TBA website:
"[W]e are of [the] opinion that the mere continuance of occupancy by the tenant or lessee after the expiration of the lease period is ordinarily accepted as the exercise of the option reserved in the lease to occupy the premises for an additional term. This is the presumption that ordinarily arises from the mere fact of holding over; but it is not conclusive of the lessee’s intention to accept the lease for an additional term. If the lease, as in this case, provides for an additional term at an increased rental, and after the expiration of the lease period the tenant holds over and pays the increased rental, this is affirmative evidence on his part that he has exercised the option to take the lease for an additional term; but where, under a lease like the present, the tenant holds over after the expiration of the original term, and does not pay the increased rental as provided by the lease, but continues to pay the original rental, which is accepted by the lessor, this negatives the idea of the acceptance of the privilege of an additional term. Under such circumstances, the lessee holding over will occupy the status of a tenant at will. "
"The principle that we recognized in Carhart – that the holding over and the continuing payment and acceptance of the agreed-upon rent creates a presumption that the lessee has effectively exercised an option to extend a lease that does not require the lessee to give notice of its decision to extend the lease – was then and continues to be the prevailing view. " Id.
Seller of home may be liable for misrepresentation for denying that death occurred in home and removing audiovisual equipment that was part of deal
THERESA S. BIANCHERI, TRUSTEE OF THE MERCER FAMILY TRUST v. CHARLES M. JOHNSON, JR. ET AL. (Tenn. Ct. App. March 19, 2009).
The matters at issue arise from a contract for the sale of a residence and the buyers’ refusal to close on the purchase of the residence. The seller, the trustee of a family trust, and the buyers entered into a contract for sale of a residence. Prior to closing, the buyers discovered that elaborate audio-visual equipment, that was material to them, had been removed by the husband of the Trustee. The buyers considered this a material breach and refused to close; as a result, the seller filed suit against the buyers for breach of contract. The buyers counter-claimed alleging the seller breached the contract first and that the seller, through its real estate agent, had made fraudulent misrepresentations to induce the buyers to sign the contract, specifically that the audio-visual equipment was part of the sale and that the previous resident, who died inside the home after being shot by his wife in the bedroom closet, had not died in the home. The buyers also filed a separate action against the seller’s real estate agent alleging fraudulent misrepresentation, fraud, promissory fraud, fraud in the inducement, negligent misrepresentation, and violations of the Tennessee Consumer Protection Act. The buyers’ claims against the seller were summarily dismissed upon findings by the trial court that the contract was valid and that the buyers breached the contract by failing to close. The real estate agent was summarily dismissed upon a finding that the buyers could not establish actionable misrepresentations. The buyers then filed a motion for summary judgment on the issue of damages for breach of contract, contending the contract afforded the seller the option of electing liquidated damages, in lieu of compensatory damages, in the amount of the earnest money and that the seller had made that election by retaining the earnest money. The trial court summarily ruled that the seller had elected to receive liquidated damages as its exclusive remedy. The buyers appeal the summary dismissal of their claims against the seller and the seller’s real estate agent. The seller appeals the summary ruling that it elected to recover liquidated damages in lieu of compensatory damages. We have determined the real estate agent was not entitled to summary judgment as material facts are in dispute concerning whether the agent made material misrepresentations to induce the buyers to enter into the contract. We have determined the seller was not entitled to summary judgment on the issue of liability for the buyers’ alleged breach of the contract because material facts are in dispute concerning whether the buyers are entitled to rescission of the contract based on the agent’s alleged misrepresentations and whether the seller breached the contract prior to the buyers’ alleged breach by removing components from the integrated television system, which the buyers contend was a material part of the contract. Due to our ruling that the seller was not entitled to summary judgment on the issue of liability, the seller is not entitled to damages for breach of contract, and it is premature to determine which party may be entitled to damages and in what amount. Accordingly, the award of liquidated damages in favor of the seller is reversed.
Opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/biancherit_031909.pdf
“We have determined that a finder of fact could conclude that the Johnsons were damaged as a result of being induced to enter into a contract to purchase a residence that Ms. Johnson insists she cannot live in if Mr. Mercer died in the residence instead of the ambulance. Further, we have determined that a finder of fact could conclude that the Johnsons were damaged as a result of being induced to enter into the contract with the reasonable belief the sophisticated and apparently expensive integrated television system was part of the sale.” Id.
“We, therefore, reverse the summary dismissal of the Johnsons’ claims of fraudulent misrepresentation and negligent misrepresentation.” Id.
The matters at issue arise from a contract for the sale of a residence and the buyers’ refusal to close on the purchase of the residence. The seller, the trustee of a family trust, and the buyers entered into a contract for sale of a residence. Prior to closing, the buyers discovered that elaborate audio-visual equipment, that was material to them, had been removed by the husband of the Trustee. The buyers considered this a material breach and refused to close; as a result, the seller filed suit against the buyers for breach of contract. The buyers counter-claimed alleging the seller breached the contract first and that the seller, through its real estate agent, had made fraudulent misrepresentations to induce the buyers to sign the contract, specifically that the audio-visual equipment was part of the sale and that the previous resident, who died inside the home after being shot by his wife in the bedroom closet, had not died in the home. The buyers also filed a separate action against the seller’s real estate agent alleging fraudulent misrepresentation, fraud, promissory fraud, fraud in the inducement, negligent misrepresentation, and violations of the Tennessee Consumer Protection Act. The buyers’ claims against the seller were summarily dismissed upon findings by the trial court that the contract was valid and that the buyers breached the contract by failing to close. The real estate agent was summarily dismissed upon a finding that the buyers could not establish actionable misrepresentations. The buyers then filed a motion for summary judgment on the issue of damages for breach of contract, contending the contract afforded the seller the option of electing liquidated damages, in lieu of compensatory damages, in the amount of the earnest money and that the seller had made that election by retaining the earnest money. The trial court summarily ruled that the seller had elected to receive liquidated damages as its exclusive remedy. The buyers appeal the summary dismissal of their claims against the seller and the seller’s real estate agent. The seller appeals the summary ruling that it elected to recover liquidated damages in lieu of compensatory damages. We have determined the real estate agent was not entitled to summary judgment as material facts are in dispute concerning whether the agent made material misrepresentations to induce the buyers to enter into the contract. We have determined the seller was not entitled to summary judgment on the issue of liability for the buyers’ alleged breach of the contract because material facts are in dispute concerning whether the buyers are entitled to rescission of the contract based on the agent’s alleged misrepresentations and whether the seller breached the contract prior to the buyers’ alleged breach by removing components from the integrated television system, which the buyers contend was a material part of the contract. Due to our ruling that the seller was not entitled to summary judgment on the issue of liability, the seller is not entitled to damages for breach of contract, and it is premature to determine which party may be entitled to damages and in what amount. Accordingly, the award of liquidated damages in favor of the seller is reversed.
Opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/biancherit_031909.pdf
“We have determined that a finder of fact could conclude that the Johnsons were damaged as a result of being induced to enter into a contract to purchase a residence that Ms. Johnson insists she cannot live in if Mr. Mercer died in the residence instead of the ambulance. Further, we have determined that a finder of fact could conclude that the Johnsons were damaged as a result of being induced to enter into the contract with the reasonable belief the sophisticated and apparently expensive integrated television system was part of the sale.” Id.
“We, therefore, reverse the summary dismissal of the Johnsons’ claims of fraudulent misrepresentation and negligent misrepresentation.” Id.
Amending foreclosure laws to require lender to negotiate and reduce the amount borrower must pay per month
Requiring Lender to Negotiate with Borrower before Foreclosure
(March 17, 2009).
TN Attorney General Opinions
Opinion Number: 09-28
(March 17, 2009).
TN Attorney General Opinions
Opinion Number: 09-28
Opinion may be found at the TBA website:
"Current foreclosure laws do not require the lender to negotiate with a borrower before selling property at foreclosure. Any change imposing this requirement with respect to a loan agreement entered into before the effective date of the act is subject to challenge under the Contract Clauses of the United States and Tennessee Constitutions. Any change that substantially impairs an existing contractual relationship must be made pursuant to a significant and legitimate public purpose. Further, the adjustment of the rights and responsibilities of the contracting parties resulting from the change must be based upon reasonable conditions and be of a character appropriate to the public purposes justifying adoption of the change. The constitutionality of a negotiation requirement would depend on the burden it places on the lender’s right to exercise the foreclosure remedy. For example, we think a court would find the requirement unconstitutional if it enables the borrower indefinitely to delay the lender’s right to foreclose and sell the property. The change could be defensible if the requirement to negotiate is clearly defined and restricted, does not change the terms of the mortgage, and does not delay foreclosure." Id..
"Any statute reducing the amount a borrower must pay a lender while good faith negotiations are in progress is subject to the same analysis. Again, the defensibility of such a measure would depend on its particular terms. We think, however, that such a measure is vulnerable to a challenge that it violates the state and federal Contract Clauses. Such a measure imposes a heavy administrative burden on a lender to ascertain the borrower’s income. Further, it changes the underlying terms of the mortgage and provides incentive for the borrower indefinitely to delay foreclosure. For these reasons, we think a court could well conclude that this change would impair the lender’s contract in violation of the Contract Clauses of the United States and Tennessee Constitutions, if applied retrospectively." Id.
Monday, June 1, 2009
WILLIAM L. ODOM, JR., ET UX. v. HAROLD OLIVER, ET AL. (Tenn. Ct. App. March 17, 2009).
Purchasers brought this action against sellers, realtor, and realty company of home that they purchased, alleging fraudulent concealment, and violation of the Tennessee Residential Property Disclosures Act. We affirm summary judgment for realtor and realty company, but we reverse the trial court’s order granting summary judgment to sellers.
Opinion may be found at the TBA website: http://www.tba2.org/tba_files/TCA/2009/odomw_031709.pdfTCA/2009/odomw_031709.pdfTCA/2009/odomw_031709.pdf
Legislature could permanently extend the notice period to ninety days after the effective date of change for foreclosures to seventy days
TN Attorney General Opinions March 10, 2009 Opinion Number: 09-24
Opinion may be found at the TBA website:
http://www.tba2.org/tba_files/AG/2009/ag_09_24.pdf
“The first question, then, is whether, in light of all the facts and circumstances, the change in the law would be a substantial impairment of a contractual relationship between the lender and the borrower. The law is procedural in nature, affecting a statutory remedy rather than underlying contractual obligations. Further, to the extent that the change protects owners, it can be argued that it advances the public interest. Nevertheless, we think a court would conclude that the extension would substantially affect the value of the contract to the lender. Under the current law, a lender may complete a foreclosure and recover its security in about three weeks. The extension would add another ten weeks to this period, with no corresponding benefit to the lender. Further, we think a court would conclude that lenders in Tennessee could not foresee such a retroactive change in the law. Of course, foreclosures have long been subject to statutory regulation in Tennessee. But the current law applies only to mortgages entered into after its effective date. Tenn. Code Ann. § 35-5-101(d). Thus, recent changes in the law have applied prospectively. Further, research indicates that the advertisement period has been “at least twenty days” for at least seventy-five years. Annotated Code of Tennessee 1934, § 7793. For these reasons, we think a court would conclude that extending the term would retroactively impair mortgage contracts entered into before the effective date of the change.” Id..
“Under Blaisdell, a law extending the advertisement period before foreclosure must be in response to an emergency. The law itself should describe the emergency. Like the United States Supreme Court in Blaisdell, we think a court would defer to the General Assembly’s findings that present economic conditions constitute an emergency justifying some legislative impairment of mortgage remedies. In Blaisdell, the Court also relied on the temporary nature of the remedy. A retroactive extension of the notice period would clearly be defensible under Blaisdell if it is drafted to last only as long as the emergency to which it responds. At the same time, the United States Supreme Court has upheld a federal law permanently regulating withdrawals of shares from building and loan associations. Veix v. Sixth Ward Building & Loan Ass’n of Newark, N.J., 310 U.S. 32, 60 S.Ct. 792, 84 L.Ed. 1061 (1940). The Court cited Blaisdell but found the fact that the withdrawal regulation was permanent to be insignificant to its Contract Clause analysis. The Court noted that the legislation was passed in response to withdrawals in 1932, but that the weakness in the financial system brought to light by the emergency remained. The Court found that, while the 1932 legislation was in response to an emergency, it did not need to be temporary. Similarly, we think it can be argued that fundamental changes in the mortgage industry, particularly the practice of selling rights under mortgages soon after they are executed, justify a permanent extension of the advertisement period. Id..
“Further, a seventy-day extension is far less burdensome than the delays authorized under the Minnesota law in Blaisdell. See, e.g., Sinclair v. Sinclair, 654 A.2d 438 (Me. 1995) (new statutory notice of foreclosure requirement, even if it added thirty days to grace period in mortgage executed before the statute’s effective date, did not substantially impair the lenders’ rights); State ex rel Lichtscheidl v. Moeller, 189 Minn. 412, 249 N.W. 330 (1933) (statute authorizing a sheriff to adjourn mortgage foreclosure sales for up to ninety days was valid against a Contract Clause challenge; there was no showing that the statute substantially obstructed or retarded enforcement or diminished the value of the mortgage contracts); State v. All Property and Casualty Insurance Carriers Authorized and Licensed to do Business in the State of Louisiana, 937 So.2d 313 (La. 2006) (statute retroactively extending one-year statute of limitations on insurance claims arising from Hurricanes Katrina and Rita valid against Contract Clause challenge). At the end of the advertisement period, the lender may proceed with the foreclosure and will be entitled to the remedies provided under the contract. Presumably, the lender’s remedies under the contract will include interest payments that accrue during the advertisement period. It can be argued, then, that the lender is entitled to compensation for the delay.” Id..
Opinion may be found at the TBA website:
http://www.tba2.org/tba_files/AG/2009/ag_09_24.pdf
“The first question, then, is whether, in light of all the facts and circumstances, the change in the law would be a substantial impairment of a contractual relationship between the lender and the borrower. The law is procedural in nature, affecting a statutory remedy rather than underlying contractual obligations. Further, to the extent that the change protects owners, it can be argued that it advances the public interest. Nevertheless, we think a court would conclude that the extension would substantially affect the value of the contract to the lender. Under the current law, a lender may complete a foreclosure and recover its security in about three weeks. The extension would add another ten weeks to this period, with no corresponding benefit to the lender. Further, we think a court would conclude that lenders in Tennessee could not foresee such a retroactive change in the law. Of course, foreclosures have long been subject to statutory regulation in Tennessee. But the current law applies only to mortgages entered into after its effective date. Tenn. Code Ann. § 35-5-101(d). Thus, recent changes in the law have applied prospectively. Further, research indicates that the advertisement period has been “at least twenty days” for at least seventy-five years. Annotated Code of Tennessee 1934, § 7793. For these reasons, we think a court would conclude that extending the term would retroactively impair mortgage contracts entered into before the effective date of the change.” Id..
“Under Blaisdell, a law extending the advertisement period before foreclosure must be in response to an emergency. The law itself should describe the emergency. Like the United States Supreme Court in Blaisdell, we think a court would defer to the General Assembly’s findings that present economic conditions constitute an emergency justifying some legislative impairment of mortgage remedies. In Blaisdell, the Court also relied on the temporary nature of the remedy. A retroactive extension of the notice period would clearly be defensible under Blaisdell if it is drafted to last only as long as the emergency to which it responds. At the same time, the United States Supreme Court has upheld a federal law permanently regulating withdrawals of shares from building and loan associations. Veix v. Sixth Ward Building & Loan Ass’n of Newark, N.J., 310 U.S. 32, 60 S.Ct. 792, 84 L.Ed. 1061 (1940). The Court cited Blaisdell but found the fact that the withdrawal regulation was permanent to be insignificant to its Contract Clause analysis. The Court noted that the legislation was passed in response to withdrawals in 1932, but that the weakness in the financial system brought to light by the emergency remained. The Court found that, while the 1932 legislation was in response to an emergency, it did not need to be temporary. Similarly, we think it can be argued that fundamental changes in the mortgage industry, particularly the practice of selling rights under mortgages soon after they are executed, justify a permanent extension of the advertisement period. Id..
“Further, a seventy-day extension is far less burdensome than the delays authorized under the Minnesota law in Blaisdell. See, e.g., Sinclair v. Sinclair, 654 A.2d 438 (Me. 1995) (new statutory notice of foreclosure requirement, even if it added thirty days to grace period in mortgage executed before the statute’s effective date, did not substantially impair the lenders’ rights); State ex rel Lichtscheidl v. Moeller, 189 Minn. 412, 249 N.W. 330 (1933) (statute authorizing a sheriff to adjourn mortgage foreclosure sales for up to ninety days was valid against a Contract Clause challenge; there was no showing that the statute substantially obstructed or retarded enforcement or diminished the value of the mortgage contracts); State v. All Property and Casualty Insurance Carriers Authorized and Licensed to do Business in the State of Louisiana, 937 So.2d 313 (La. 2006) (statute retroactively extending one-year statute of limitations on insurance claims arising from Hurricanes Katrina and Rita valid against Contract Clause challenge). At the end of the advertisement period, the lender may proceed with the foreclosure and will be entitled to the remedies provided under the contract. Presumably, the lender’s remedies under the contract will include interest payments that accrue during the advertisement period. It can be argued, then, that the lender is entitled to compensation for the delay.” Id..
Reasonable reliance element of misrepresentation claims in real estate transactions require an undisputed statement of fact to merit summary judgment
ROBERT H. GOODALL, JR. v. WILLIAM B. AKERS (Tenn. Ct. App. March 3, 2009).
Buyer sued seller of large tract of real estate for intentional misrepresentation, fraudulent misrepresentation, breach of contract, and breach of express warranty based upon allegations that an earthen dam on the property was unsafe. The trial court granted summary judgment in favor of the buyer on all issues of liability. Because we have concluded that there is a genuine issue of material fact as to whether the buyer reasonably relied upon the seller’s misrepresentations, we reverse and remand.
Opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/goodallr_030309.pdf
“Justifiable reliance is an essential element of a claim for fraudulent misrepresentation or fraudulent concealment. See McNeil v. Nofal, 185 S.W.3d 402, 408 (Tenn. Ct. App. 2005). The burden of proof is on the plaintiff to show that his reliance upon the defendant’s statements or representations was reasonable. Id. at 409; Metro. Gov’t of Nashville & Davidson County v. McKinney, 852 S.W.2d 233, 238 (Tenn. Ct. App. 1992). Whether the plaintiff’s reliance on a representation was reasonable is a question of fact that is generally not appropriate for summary judgment. City State Bank v. Dean Witter Reynolds, Inc., 948 S.W.2d 729, 737 (Tenn. Ct. App. 1996). In determining the reasonableness of a plaintiff’s reliance, a number of factors should be considered: (1) the plaintiff’s business expertise and sophistication; (2) the existence of a longstanding business or personal relationship between the parties; (3) the availability of the relevant information; (4) the existence of a fiduciary relationship; (5) the concealment of the fraud; (6) the opportunity to discover the fraud; (7) which party initiated the transaction; and (8) the specificity of the misrepresentation.” Id.
“We do not consider this affidavit alone sufficient to establish as a matter of law that Goodall’s reliance was reasonable. Goodall has the burden of proof on the issue of reasonable reliance and must allege undisputed facts establishing the existence of reasonable reliance in order to shift the burden of production.” Id.
“Was it reasonable, under the circumstances, for Goodall to forego any independent inspection or investigation concerning the dam? This determination will hinge in part on the trial court’s assessment of the credibility of the two parties, as well as any other witnesses. Weighing facts and assessing credibility are not appropriate for the summary judgment process.” Id.
Buyer sued seller of large tract of real estate for intentional misrepresentation, fraudulent misrepresentation, breach of contract, and breach of express warranty based upon allegations that an earthen dam on the property was unsafe. The trial court granted summary judgment in favor of the buyer on all issues of liability. Because we have concluded that there is a genuine issue of material fact as to whether the buyer reasonably relied upon the seller’s misrepresentations, we reverse and remand.
Opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/goodallr_030309.pdf
“Justifiable reliance is an essential element of a claim for fraudulent misrepresentation or fraudulent concealment. See McNeil v. Nofal, 185 S.W.3d 402, 408 (Tenn. Ct. App. 2005). The burden of proof is on the plaintiff to show that his reliance upon the defendant’s statements or representations was reasonable. Id. at 409; Metro. Gov’t of Nashville & Davidson County v. McKinney, 852 S.W.2d 233, 238 (Tenn. Ct. App. 1992). Whether the plaintiff’s reliance on a representation was reasonable is a question of fact that is generally not appropriate for summary judgment. City State Bank v. Dean Witter Reynolds, Inc., 948 S.W.2d 729, 737 (Tenn. Ct. App. 1996). In determining the reasonableness of a plaintiff’s reliance, a number of factors should be considered: (1) the plaintiff’s business expertise and sophistication; (2) the existence of a longstanding business or personal relationship between the parties; (3) the availability of the relevant information; (4) the existence of a fiduciary relationship; (5) the concealment of the fraud; (6) the opportunity to discover the fraud; (7) which party initiated the transaction; and (8) the specificity of the misrepresentation.” Id.
“We do not consider this affidavit alone sufficient to establish as a matter of law that Goodall’s reliance was reasonable. Goodall has the burden of proof on the issue of reasonable reliance and must allege undisputed facts establishing the existence of reasonable reliance in order to shift the burden of production.” Id.
“Was it reasonable, under the circumstances, for Goodall to forego any independent inspection or investigation concerning the dam? This determination will hinge in part on the trial court’s assessment of the credibility of the two parties, as well as any other witnesses. Weighing facts and assessing credibility are not appropriate for the summary judgment process.” Id.
LAWRENCE D. SELLICK ET AL. v. GENE S. MILLER ET AL. (Tenn. Ct. App. February 27, 2009).
Landowners Lawrence D. Sellick and Sheri A. Sellick (“the Sellicks”), who own the Archie Tate Farm Road (“the farm road”), brought this action for a declaration that their neighbors, Gene S. Miller and Lois J. Miller (“the Millers”), do not have a right to use the farm road for ingress and egress from property owned by the Millers and designated as Map 85, Parcel 5.07 (“Parcel 5.07”). The deed to Parcel 5.07 contains no language concerning an easement, and the property fronts on a paved county road. The Millers own a second piece of property designated as Map 85, Parcel 5.02 (“Parcel 5.02”). The deed to Parcel 5.02 contains an easement over the farm road. The Millers filed a motion for partial judgment on the pleadings, claiming they have the right to transfer the easement for Parcel 5.02 to Parcel 5.07 because the deed to Parcel 5.02 states, “This easement shall be freely transferable and shall pass with the title to the above property.” They also claim that the recitation in the deed to Parcel 5.07 that “a new 50 foot ROW road” is a boundary, creates an easement in the farm road for the use and benefit of Parcel 5.07. The trial court refused to grant the Millers’ motion on the “transferability” issue, holding that the language in the deed to Parcel 5.02 “is at best ambiguous and possibly such that further proof may be proper to ascertain its meaning.” The court granted the Millers’ motion, however, on its second basis, i.e., the recitation in the deed to Parcel 5.07 that “a new 50 foot ROW road” is a boundary created an easement in the farm road benefitting Parcel 5.07. We hold that the deed to Parcel 5.02 is not ambiguous and, furthermore, that the Millers do not have an easement in the farm road on any of the bases asserted. We vacate the judgment and remand for further proceedings.
Opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/sellickl_022709.pdf
“The Millers assert that the deed’s “freely transferable” language not only gives them the right to transfer the easement rights of Parcel 5.02 to another piece of nearby property owned by them, i.e., Parcel 5.07, but also that the language “creates an easement with rights of use at [their] discretion.” Id.
“The rules concerning the interpretation of deeds are well-settled and are for the purpose of enabling the courts to ascertain the intention of the parties to the deed... The courts should first seek to determine the parties’ intentions by examining the words of the deed. Id... The words of the deed should be considered in the context of the whole deed. Id. (citations omitted).” Id.
“The trial court found the words “This easement shall be freely transferable and shall pass with the title to the above realty” to be ambiguous. We do not. By use of the conjunctive “and,” the drafter of the deed tied transferability to “the title to the above reality.” The “above realty” can only refer to the land conveyed by the deed, which is Parcel 5.02. Thus, the easement is freely transferable with the title to Parcel 5.02. To hold otherwise would defeat fundamental principles of property law.” Id.
“The record does not support the Millers’ claim that the recitation of the boundary creates an estoppel. In addition, they have failed to show an easement by estoppel. To prevail under a theory of easement by estoppel, the party claiming the estoppel must show that the owner of the servient estate made some misrepresentation, the party believed the communication, and the party relied on the communication. Adcock v. Witcher, No. 01-A-01-9505-CH00220, !995 WL 675852, at *5 (Tenn. Ct. App. M.S., filed November 15, 1995) (citations omitted). As we noted,
“‘[t]he principle of an estoppel of this character is that the party who is to be [affected] by it has, by his own word or conduct, misled another into a course of action that, if the estoppel is not enforced, will work an injury to him who is thus misled.’” Id. (quoting Moses v. Sanford, 70 Tenn. 655, 659 (Tenn. 1879)). There are no facts to this effect in the record.” Id.
Landowners Lawrence D. Sellick and Sheri A. Sellick (“the Sellicks”), who own the Archie Tate Farm Road (“the farm road”), brought this action for a declaration that their neighbors, Gene S. Miller and Lois J. Miller (“the Millers”), do not have a right to use the farm road for ingress and egress from property owned by the Millers and designated as Map 85, Parcel 5.07 (“Parcel 5.07”). The deed to Parcel 5.07 contains no language concerning an easement, and the property fronts on a paved county road. The Millers own a second piece of property designated as Map 85, Parcel 5.02 (“Parcel 5.02”). The deed to Parcel 5.02 contains an easement over the farm road. The Millers filed a motion for partial judgment on the pleadings, claiming they have the right to transfer the easement for Parcel 5.02 to Parcel 5.07 because the deed to Parcel 5.02 states, “This easement shall be freely transferable and shall pass with the title to the above property.” They also claim that the recitation in the deed to Parcel 5.07 that “a new 50 foot ROW road” is a boundary, creates an easement in the farm road for the use and benefit of Parcel 5.07. The trial court refused to grant the Millers’ motion on the “transferability” issue, holding that the language in the deed to Parcel 5.02 “is at best ambiguous and possibly such that further proof may be proper to ascertain its meaning.” The court granted the Millers’ motion, however, on its second basis, i.e., the recitation in the deed to Parcel 5.07 that “a new 50 foot ROW road” is a boundary created an easement in the farm road benefitting Parcel 5.07. We hold that the deed to Parcel 5.02 is not ambiguous and, furthermore, that the Millers do not have an easement in the farm road on any of the bases asserted. We vacate the judgment and remand for further proceedings.
Opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/sellickl_022709.pdf
“The Millers assert that the deed’s “freely transferable” language not only gives them the right to transfer the easement rights of Parcel 5.02 to another piece of nearby property owned by them, i.e., Parcel 5.07, but also that the language “creates an easement with rights of use at [their] discretion.” Id.
“The rules concerning the interpretation of deeds are well-settled and are for the purpose of enabling the courts to ascertain the intention of the parties to the deed... The courts should first seek to determine the parties’ intentions by examining the words of the deed. Id... The words of the deed should be considered in the context of the whole deed. Id. (citations omitted).” Id.
“The trial court found the words “This easement shall be freely transferable and shall pass with the title to the above realty” to be ambiguous. We do not. By use of the conjunctive “and,” the drafter of the deed tied transferability to “the title to the above reality.” The “above realty” can only refer to the land conveyed by the deed, which is Parcel 5.02. Thus, the easement is freely transferable with the title to Parcel 5.02. To hold otherwise would defeat fundamental principles of property law.” Id.
“The record does not support the Millers’ claim that the recitation of the boundary creates an estoppel. In addition, they have failed to show an easement by estoppel. To prevail under a theory of easement by estoppel, the party claiming the estoppel must show that the owner of the servient estate made some misrepresentation, the party believed the communication, and the party relied on the communication. Adcock v. Witcher, No. 01-A-01-9505-CH00220, !995 WL 675852, at *5 (Tenn. Ct. App. M.S., filed November 15, 1995) (citations omitted). As we noted,
“‘[t]he principle of an estoppel of this character is that the party who is to be [affected] by it has, by his own word or conduct, misled another into a course of action that, if the estoppel is not enforced, will work an injury to him who is thus misled.’” Id. (quoting Moses v. Sanford, 70 Tenn. 655, 659 (Tenn. 1879)). There are no facts to this effect in the record.” Id.
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