ERVIN D. SMITH, ET AL. v. PAUL EVANS, ET AL. (Tenn.Ct.App. August, 28, 2008).
Owners of property brought suit to terminate an ingress/egress easement across their land, contending that the necessity for the easement no longer existed. Following a trial, the Chancery Court ruled against the owners, finding that since the easement was reserved in a recorded plat, it was not an easement by necessity; consequently, the easement was not destroyed upon the sale of the dominant estate. On appeal, the owners maintain that the easement was destroyed at the end of the necessity. Finding the easement to be express, we affirm the decision of the Chancery Court. Finding the appeal not to be frivolous, no attorney's fees are awarded.
Opinion may be found at TBA website:
http://www.tba2.org/tba_files/TCA/2008/smithve_082808.pdf
"Mr. Cook retained ownership of a 14.2 acre tract of land immediately behind the lots which fronted on the west side of Sawmill Road (the “Cook Property”). To ensure access to the Cook Property, he reserved a 20 foot ingress/egress easement over lot 5 of the subdivision; this easement was included in the recorded plat and allows access to Sawmill Road." Id.
"An easement by reservation is “in behalf of the grantor [of] a new right issuing out of the thing granted, and an easement appurtenant to the grantor’s remaining land may be created by reservation.” [] Even though an easement by reservation is a separate type of easement, it can still be sub-categorized as being either express or implied. ... An express easement by reservation “arises when a property owner conveys part of his or her property to another, but includes language in the conveyance reserving the right to use some part of the transferred land as a right-of-way.” [] Any reservation of an easement “is equivalent, for the purpose of creation of the easement, to an express grant of the easement by the grantee of the lands.” Id." Id. (citations omitted).
"An easement by express grant can be extinguished: by an act of the dominant owner, either by release or abandonment, by act of the servient owner by prescription or conveyance to a bona fide purchaser without notice, by the conduct of both parties, such as by merger or estoppel, or by eminent domain, mortgage, foreclosure, or tax sale. [] An easement “created by reference to a filed map can be extinguished only by the united action of all lot owners for whose benefit the easement is created...” [] No such measures were taken in this case; indeed, the deed conveying the Cook Property to the Evanses includes the following language ... . The easement was not terminated when the Evanses bought the Cook Property." Id. (citations omitted).
August 28, 2008
August 25, 2008
Court endorses zoning board's reading of its zoning ordinances
MOORE & ASSOCIATES, INC. v. METROPOLITAN BOARD OF ZONING APPEALS (Tenn.Ct.App. August 25, 2008).
Zoning administrator denied a waiver of the Metropolitan Zoning Code's landscape buffer requirement and the Board of Zoning Appeals upheld the administrator's interpretation of the ordinance. Plaintiff contractor appealed to the circuit court, which determined that the zoning administrator's interpretation of the ordinance was incorrect and granted the waiver. The Board of Zoning Appeals appealed. The trial court's interpretation of the ordinance is affirmed, but the decision to grant the waiver is vacated, and the case is remanded to the trial court with instructions to return the matter to the board for further action.
Opinion may be found at TBA website:
http://www.tba2.org/tba_files/TCA/2008/moore_assoc_082508.pdf
"During construction, a mud seam was discovered which, Moore and Associates claim, made the planned vertical wall “unsafe and impractical.” With the apparent approval of the building inspector and without seeking any approval from the zoning authorities to amend the original plans, Moore and Associates constructed a wall that begins by sloping slightly toward the adjacent property. About halfway to its height of approximately 39 feet, the wall turns and makes a gentler slope to the top, ending near the property line. In September 2001, Moore and Associates requested a waiver of the landscape buffer requirement. The zoning administrator, Mr. West, denied the request." Id.
"The trial court granted the waiver because of the Board of Zoning Appeal’s error in approving Mr. West’s interpretation. Doing so was a natural reaction in which the court sought to end litigation that had gone on far too long. We, however, must disagree with the trial court’s action. Under § 17.24.240G, a waiver is not automatic even if there is a demonstration of unusual site-grade conditions which would clearly negate the effects of the required yard. ... Therefore, we vacate the trial court’s issuance of the waiver and remand the case to the trial court with instructions to return the case to the Board of Zoning Appeals for further action consistent with this opinion." Id.
Zoning administrator denied a waiver of the Metropolitan Zoning Code's landscape buffer requirement and the Board of Zoning Appeals upheld the administrator's interpretation of the ordinance. Plaintiff contractor appealed to the circuit court, which determined that the zoning administrator's interpretation of the ordinance was incorrect and granted the waiver. The Board of Zoning Appeals appealed. The trial court's interpretation of the ordinance is affirmed, but the decision to grant the waiver is vacated, and the case is remanded to the trial court with instructions to return the matter to the board for further action.
Opinion may be found at TBA website:
http://www.tba2.org/tba_files/TCA/2008/moore_assoc_082508.pdf
"During construction, a mud seam was discovered which, Moore and Associates claim, made the planned vertical wall “unsafe and impractical.” With the apparent approval of the building inspector and without seeking any approval from the zoning authorities to amend the original plans, Moore and Associates constructed a wall that begins by sloping slightly toward the adjacent property. About halfway to its height of approximately 39 feet, the wall turns and makes a gentler slope to the top, ending near the property line. In September 2001, Moore and Associates requested a waiver of the landscape buffer requirement. The zoning administrator, Mr. West, denied the request." Id.
"The trial court granted the waiver because of the Board of Zoning Appeal’s error in approving Mr. West’s interpretation. Doing so was a natural reaction in which the court sought to end litigation that had gone on far too long. We, however, must disagree with the trial court’s action. Under § 17.24.240G, a waiver is not automatic even if there is a demonstration of unusual site-grade conditions which would clearly negate the effects of the required yard. ... Therefore, we vacate the trial court’s issuance of the waiver and remand the case to the trial court with instructions to return the case to the Board of Zoning Appeals for further action consistent with this opinion." Id.
August 22, 2008
Court denies waiver and awards attorneys fees to contractor after appeal establishes contractual right to recover
HOMEBUILDERS McGEE & STORY, LLC v. HENRY BUCKNER (Tenn.Ct.App. August 22, 2008).
This is the second appeal of a contract dispute between a homeowner and the contractor he engaged to make improvements to his home. The homeowner contends that the trial court erred by awarding the contractor attorney's fees on remand following the first appeal because the contractor waived its claim of attorney's fees, the contractor is judicially estopped to claim attorney's fees, and the trial court lacked jurisdiction to award attorney's fees following remand. We have determined the contractor had not waived its claim and it was not judicially estopped to assert a claim for attorney's fees. We have also determined that the trial court had jurisdiction to award attorney's fees pursuant to the contract following remand of the first appeal.
Opinion may be found at TBA website:
http://www.tba2.org/tba_files/TCA/2008/bucknerh_082208.pdf
"Litigation between the parties arose after Mr. Buckner unilaterally terminated the services of Homebuilders when the project was only 30% complete. ... When Mr. Buckner refused to pay any portion of the final bill, Homebuilders filed a Complaint against Mr. Buckner for breach of contract in the circuit court. ... Mr. Buckner filed a Complaint in chancery court against Homebuilders and its principals for fraud, breach of contract, violations of the Tennessee Consumer Protection Act, negligent misrepresentation, negligence, and breach of fiduciary duty. The two cases were soon consolidated into the circuit court action. ... [T]he trial court dismissed the parties’ respective breach of contract claims on a finding the Construction Management Agreement was not enforceable because the parties did not have a meeting of the minds. The trial court also dismissed all other claims of each party, including Mr. Buckner's claims for fraud, violations of the Tennessee Consumer Protection Act, negligent misrepresentation, negligence, and breach of fiduciary duty. Within a week of the foregoing judgment being entered by the trial court, Homebuilders filed a motion seeking to recover its attorney’s fees. Prior to that motion being heard, Mr. Buckner filed his notice of appeal. Immediately thereafter, the trial court entered an order stating that the motion for attorney’s fees would be taken under advisement pending the appeal. Thus, Homebuilders’ motion for attorney’s fees remained unresolved while Mr. Buckner pursued his first appeal." Id.
"We determined in the first appeal that the Agreement constituted an enforceable contract because it sufficiently identified the scope of the work and the price of the work, which was an agreed budget of $175,000 with a management fee of “Cost Plus 17%.” [] We also found that Homebuilders was entitled to damages resulting from Mr. Buckner’s breach of the contract in the amount of $25,328." Id. (citations omitted).
"Homebuilders had filed a motion to recover its attorney’s fees prior to the first appeal ... based on the fact that Homebuilders had been the prevailing party on Mr. Buckner’s claims based on the Tennessee Consumer Protection Act. Homebuilders had not filed a motion for attorney’s fees pursuant to the contract because the court found there was no enforceable contract between the parties. Thus, at that time, there was no contractual basis upon which Homebuilders could recover its attorney’s fees. It was not until this court had respectfully disagreed with the trial court’s conclusion on the contract claim that Homebuilders was in a posture to file a motion to recover its attorney’s fees based on contract." Id.
This is the second appeal of a contract dispute between a homeowner and the contractor he engaged to make improvements to his home. The homeowner contends that the trial court erred by awarding the contractor attorney's fees on remand following the first appeal because the contractor waived its claim of attorney's fees, the contractor is judicially estopped to claim attorney's fees, and the trial court lacked jurisdiction to award attorney's fees following remand. We have determined the contractor had not waived its claim and it was not judicially estopped to assert a claim for attorney's fees. We have also determined that the trial court had jurisdiction to award attorney's fees pursuant to the contract following remand of the first appeal.
Opinion may be found at TBA website:
http://www.tba2.org/tba_files/TCA/2008/bucknerh_082208.pdf
"Litigation between the parties arose after Mr. Buckner unilaterally terminated the services of Homebuilders when the project was only 30% complete. ... When Mr. Buckner refused to pay any portion of the final bill, Homebuilders filed a Complaint against Mr. Buckner for breach of contract in the circuit court. ... Mr. Buckner filed a Complaint in chancery court against Homebuilders and its principals for fraud, breach of contract, violations of the Tennessee Consumer Protection Act, negligent misrepresentation, negligence, and breach of fiduciary duty. The two cases were soon consolidated into the circuit court action. ... [T]he trial court dismissed the parties’ respective breach of contract claims on a finding the Construction Management Agreement was not enforceable because the parties did not have a meeting of the minds. The trial court also dismissed all other claims of each party, including Mr. Buckner's claims for fraud, violations of the Tennessee Consumer Protection Act, negligent misrepresentation, negligence, and breach of fiduciary duty. Within a week of the foregoing judgment being entered by the trial court, Homebuilders filed a motion seeking to recover its attorney’s fees. Prior to that motion being heard, Mr. Buckner filed his notice of appeal. Immediately thereafter, the trial court entered an order stating that the motion for attorney’s fees would be taken under advisement pending the appeal. Thus, Homebuilders’ motion for attorney’s fees remained unresolved while Mr. Buckner pursued his first appeal." Id.
"We determined in the first appeal that the Agreement constituted an enforceable contract because it sufficiently identified the scope of the work and the price of the work, which was an agreed budget of $175,000 with a management fee of “Cost Plus 17%.” [] We also found that Homebuilders was entitled to damages resulting from Mr. Buckner’s breach of the contract in the amount of $25,328." Id. (citations omitted).
"Homebuilders had filed a motion to recover its attorney’s fees prior to the first appeal ... based on the fact that Homebuilders had been the prevailing party on Mr. Buckner’s claims based on the Tennessee Consumer Protection Act. Homebuilders had not filed a motion for attorney’s fees pursuant to the contract because the court found there was no enforceable contract between the parties. Thus, at that time, there was no contractual basis upon which Homebuilders could recover its attorney’s fees. It was not until this court had respectfully disagreed with the trial court’s conclusion on the contract claim that Homebuilders was in a posture to file a motion to recover its attorney’s fees based on contract." Id.
August 19, 2008
In a dispute over land ownership, payment of taxes is controlling only in the absence of contrary facts and circumstances
BOBBY E. WHITE AND ANN H. WHITE v. PULASKI ELECTRIC SYSTEM (Tenn.Ct.App. August 19, 2008).
Bobby E. White and Ann H. White sought judgment granting them title to a small portion of property that they claim to own by deed, adverse possession and by payment of taxes. The trial court granted Pulaski Electric System, a public electric company, summary judgment. Finding no reversible error, we affirm the judgment of the trial court.
Opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2008/whiteb_081908.pdf
"The Whites contend they should be granted relief based on the presumption of ownership through payment of taxes contained in Tenn. Code Ann. § 28-2-109. In support of this contention, they assert that they and their predecessors have been assessed and paid taxes on Parcel 24.03 since 1985 and that the tax assessor’s maps and records as well as every deed since 1985 describes the property as running 100 feet west from South First Street. They also contend that PES has not paid taxes on the disputed portion of property, and is therefore barred from its claim under Tenn. Code Ann. § 28-2-110."" Id.
"The evidence shows that the Whites and their predecessors paid city and county taxes on the disputed property for over twenty (20) years; however, inasmuch as neither they nor their predecessors had legal title or equitable interest in the disputed 19 foot tract of land, they were not entitled to the presumption of legal ownership granted by the statute. Moreover, the tax map cannot be used to establish the boundary lines of the property." Id. (citations omitted).
"Even if the Whites did meet the statutory requirements to receive the benefit of the presumption that they are the legal owners of the disputed tract, PES rebutted the presumption by showing by clear and convincing proof that any purported title to the disputed tract claimed by the Whites was not valid. The statutory presumption is that the claimant is the prima facie legal owner of the land; as such, it is controlling only in the absence of contrary facts and circumstances. [] Through the recorded deeds and other public records dating as far back as 1929, PES has shown, by a preponderance of evidence, that the property description contained in the Whites’ deed is erroneous." Id. (citations omitted).
"Pursuant to Tenn. Code Ann. § 67-5-203(a)(1),5 the property at issue, being property of the City of Pulaski, is exempt from taxation. Thus, the fact that PES did not pay taxes on the property does not preclude it from defending the title to same." Id.
Bobby E. White and Ann H. White sought judgment granting them title to a small portion of property that they claim to own by deed, adverse possession and by payment of taxes. The trial court granted Pulaski Electric System, a public electric company, summary judgment. Finding no reversible error, we affirm the judgment of the trial court.
Opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2008/whiteb_081908.pdf
"The Whites contend they should be granted relief based on the presumption of ownership through payment of taxes contained in Tenn. Code Ann. § 28-2-109. In support of this contention, they assert that they and their predecessors have been assessed and paid taxes on Parcel 24.03 since 1985 and that the tax assessor’s maps and records as well as every deed since 1985 describes the property as running 100 feet west from South First Street. They also contend that PES has not paid taxes on the disputed portion of property, and is therefore barred from its claim under Tenn. Code Ann. § 28-2-110."" Id.
"The evidence shows that the Whites and their predecessors paid city and county taxes on the disputed property for over twenty (20) years; however, inasmuch as neither they nor their predecessors had legal title or equitable interest in the disputed 19 foot tract of land, they were not entitled to the presumption of legal ownership granted by the statute. Moreover, the tax map cannot be used to establish the boundary lines of the property." Id. (citations omitted).
"Even if the Whites did meet the statutory requirements to receive the benefit of the presumption that they are the legal owners of the disputed tract, PES rebutted the presumption by showing by clear and convincing proof that any purported title to the disputed tract claimed by the Whites was not valid. The statutory presumption is that the claimant is the prima facie legal owner of the land; as such, it is controlling only in the absence of contrary facts and circumstances. [] Through the recorded deeds and other public records dating as far back as 1929, PES has shown, by a preponderance of evidence, that the property description contained in the Whites’ deed is erroneous." Id. (citations omitted).
"Pursuant to Tenn. Code Ann. § 67-5-203(a)(1),5 the property at issue, being property of the City of Pulaski, is exempt from taxation. Thus, the fact that PES did not pay taxes on the property does not preclude it from defending the title to same." Id.
August 18, 2008
Municipal planning commission may approve/disprove a plan with a majority vote, if a quorum is present
Vote of Municipal Planning Commission to Approve or Disapprove a Plat
TN Attorney General Opinions
Date: 2008-08-18
Opinion Number: 08-135
"Under Tenn. Code Ann. § 13-4-202, the planning commission may adopt a municipal master plan by a resolution carried by the “affirmative votes of not less than a majority of all the members of the commission.” (Emphasis added). Under Tenn. Code Ann. § 13-4-302, once the planning commission adopts a master plan, a plat of a subdivision of land within the city must be approved by the planning commission before it may be filed or recorded. Where the plat divides a tract into no more than two lots, the approval may be endorsed in writing on the plat by the secretary of the commission or another designee of the commission without the approval of the commission, provided certain conditions are met." Id.
"Tenn. Code Ann. § 13-4-304(a)--(c) ... does not specify the number of board members who must vote to approve or disapprove a plat. A quorum generally consists of a simple majority of a collective body. In the absence of a statutory provision to the contrary, the common law provides that a majority of such a quorum is empowered to act for the body." Id. (citation omitted).
Opinion may be found at:
http://www.tba2.org/tba_files/AG/2008/ag_08_135.pdf
TN Attorney General Opinions
Date: 2008-08-18
Opinion Number: 08-135
"Under Tenn. Code Ann. § 13-4-202, the planning commission may adopt a municipal master plan by a resolution carried by the “affirmative votes of not less than a majority of all the members of the commission.” (Emphasis added). Under Tenn. Code Ann. § 13-4-302, once the planning commission adopts a master plan, a plat of a subdivision of land within the city must be approved by the planning commission before it may be filed or recorded. Where the plat divides a tract into no more than two lots, the approval may be endorsed in writing on the plat by the secretary of the commission or another designee of the commission without the approval of the commission, provided certain conditions are met." Id.
"Tenn. Code Ann. § 13-4-304(a)--(c) ... does not specify the number of board members who must vote to approve or disapprove a plat. A quorum generally consists of a simple majority of a collective body. In the absence of a statutory provision to the contrary, the common law provides that a majority of such a quorum is empowered to act for the body." Id. (citation omitted).
Opinion may be found at:
http://www.tba2.org/tba_files/AG/2008/ag_08_135.pdf
August 13, 2008
Conflicting surveys are subject to Court's review of the ambiguous and contradictory evidence supporting them
BART LAY ET AL. v. HOWARD HOLMES ET AL. (Tenn.Ct.App. August 13, 2008).
In this boundary dispute, the trial court had to choose between conflicting surveys. After a trial, the court determined that the survey for the defendants was correct due to the failure of the plaintiffs' surveyor to locate a landmark beech tree. We affirm.
Opinion may be found at TBA website:
http://www.tba2.org/tba_files/TCA/2008/layb_081308.pdf
"[This case] contains conflicting evidence, the recollections of elderly members of the community, errors in deeds, deeds describing the property boundaries by who borders the property rather than by landmarks, and boundary descriptions using landmarks such as trees which may or may not exist today." Id.
"The court made a factual determination that the beech tree identified ... was the tree mentioned in the deeds. It is the oldest in the hollow, it is clearly old enough to be the one in the deeds, and it is located near a spring. This is a crucial factual determination that is central to the dispute. ...The spring located near the beech tree was identified by Mitchell Adcock as Boles Spring. While others identified a spring to the north as Boles Spring, the presence of the beech tree by this spring lends much credence to the trial court’s decision that this spring is indeed Boles Spring." Id.
"The second point implicit in the trial court’s endorsement of the Denny survey is that the old fence line upon which the Bradley survey relies is not a boundary. Bradley believed it was a boundary because it ran northward as the Lay deed recited, it had no gates, and it ended up around the area where the boundary agreements came together. The error in the deeds undercuts Bradley’s first reason. Testimony indicated that the fence was built by Mr. Baker, the prior owner of the property, to fence in his goats. This makes sense, in light of the fact that while a steep hollow may deter cows from wandering, steep terrain will not deter a goat. To keep the goats from wandering away up or down the hollow, a fence was a necessity. The fact that the fence ended up around the area where the boundary agreements came together is not a determinative factor. The apparent lack of gates is not determinative either. " Id.
In this boundary dispute, the trial court had to choose between conflicting surveys. After a trial, the court determined that the survey for the defendants was correct due to the failure of the plaintiffs' surveyor to locate a landmark beech tree. We affirm.
Opinion may be found at TBA website:
http://www.tba2.org/tba_files/TCA/2008/layb_081308.pdf
"[This case] contains conflicting evidence, the recollections of elderly members of the community, errors in deeds, deeds describing the property boundaries by who borders the property rather than by landmarks, and boundary descriptions using landmarks such as trees which may or may not exist today." Id.
"The court made a factual determination that the beech tree identified ... was the tree mentioned in the deeds. It is the oldest in the hollow, it is clearly old enough to be the one in the deeds, and it is located near a spring. This is a crucial factual determination that is central to the dispute. ...The spring located near the beech tree was identified by Mitchell Adcock as Boles Spring. While others identified a spring to the north as Boles Spring, the presence of the beech tree by this spring lends much credence to the trial court’s decision that this spring is indeed Boles Spring." Id.
"The second point implicit in the trial court’s endorsement of the Denny survey is that the old fence line upon which the Bradley survey relies is not a boundary. Bradley believed it was a boundary because it ran northward as the Lay deed recited, it had no gates, and it ended up around the area where the boundary agreements came together. The error in the deeds undercuts Bradley’s first reason. Testimony indicated that the fence was built by Mr. Baker, the prior owner of the property, to fence in his goats. This makes sense, in light of the fact that while a steep hollow may deter cows from wandering, steep terrain will not deter a goat. To keep the goats from wandering away up or down the hollow, a fence was a necessity. The fact that the fence ended up around the area where the boundary agreements came together is not a determinative factor. The apparent lack of gates is not determinative either. " Id.
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