January 28, 2008

Get it in writing: a ledger entry plus testimony provides evidentiary basis to defeat claim of amendment of JV agreement to construct a home for sale

STINSON, INC. v. JOHNATHAN ANDREW COOK (Tenn.Ct.App. January 25, 2008).

The two parties to this appeal entered into a joint venture based upon an oral agreement, the purpose of which was to construct a house with the intent to sell the house on the open market. Unfortunately, no one agreed to purchase the house, and thus, pursuant to the venturers' oral agreement, the defendant purchased the house "at cost." The plaintiff sued the defendant contending it was entitled to an additional $30,000 based upon an alleged subsequent agreement by the defendant to purchase the lot upon which the house was constructed for $50,000 even though the plaintiff's cost to purchase the lot was $20,000. The trial court found the parties' agreement provided that the defendant would purchase the house and lot at cost, that the cost of the lot was $20,000, and that the defendant had paid the plaintiff all it was entitled to receive. Finding no error, we affirm.

Opinion may be found at:

"And two times in this matter, the lot in question, 157, was shown of an actual cost of $20,000. It was shown on the oath of Mr. Stinson upon the transfer from Plantation Properties to Stinson, Incorporated, and it was shown on the Stinson job ledger sheet. And by a preponderance of the evidence, the cost of the lot was $20,000. ... As the foregoing reveals, the trial court found that the parties’ agreement provided that Cook would purchase the lot “at cost,” that the lot cost Stinson $20,000, and that Cook paid Stinson all of its costs, including $20,000 it was entitled to receive for the cost of the lot. Moreover, the court did not find that the parties had entered into a subsequent agreement or that they had amended their joint venture agreement." Id.

January 21, 2008

The law of adverse possession and related legal doctrines are thoroughly examined in this court opinion

ROGER BALL and CARROL E. ROSE, LLC., v. BRUCE MCDOWELL, Individually and as Next Friend for D.B., C.B., B.B., Children under the age of Eighteen (18) years, PENNY CAYLOR, GARY ESTES, BRYAN KEITH BROCK, WARREN YONTS and PAULINE YONTS and JAMES D. YONTS (Tenn.Ct.App. January 18, 2008).

In this action, plaintiffs ask the Court to declare their easement across defendants' lands be cleared of all encroachments and that defendants be barred from interfering with their use. The Trial Court ruled for plaintiffs. Defendants appeal on the grounds they proved adverse possession of the easement for more than seven years, and plaintiffs are barred from interfering with their use by Tenn. Code Ann. section 28-2-103. We reverse the Trial Court's Judgment.

Opinion may be found at:

"At trial, plaintiffs did not offer any evidence to rebut the testimony regarding the use of the 50 ft. easement. The Trial Court incorrectly applied the law, when it refused to find that Tenn. Code Ann. § 28 - 2 - 103 barred plaintiffs’ cause of action. The Trial Court further erred when it found that there was no adverse possession because “the owner had no actual notice of the claim of adverse possession.” A showing of actual knowledge is not necessary if the possession is so open and notorious that there is an implied presumption of that fact. Kirkman v. Brown, 93 Tenn. 476, 27 S.W. 709, 710 (Tenn.1894). The evidence establishes defendants’ possession was open and notorious. Moreover, plaintiffs offered no testimony as to whether they were aware of the defendants’ activities or not." Id.

January 17, 2008

Simple tool doctrine is abolished because it is essentially a variation of the assumption of risk defense


This is a comparative negligence case. The plaintiff prisoner was incarcerated at the defendant county's jail. The inmates were given an opportunity to earn a reduction in their sentences by performing construction work to expand the jail's workhouse facility. The plaintiff volunteered for this program and was assigned the task of hanging cement board on the walls of the workhouse; the jail provided the plaintiff with a scaffold and a step ladder. The plaintiff was told to hang one of the boards at a height that could not be reached by standing on the scaffold alone. To perform the task, the plaintiff put the ladder on top of the scaffold and climbed the ladder. In doing so, he lost his balance, the scaffold collapsed, and he fell to the floor, sustaining serious injuries.

The plaintiff prisoner sued the county under the Governmental Tort Liability Act, seeking damages for his injuries. The county moved for summary judgment, asserting the simple tool doctrine and comparative negligence. The trial court granted the motion on both grounds. The plaintiff appeals. We reverse, finding, inter alia, that the simple tool doctrine is a form of assumption of the risk and, as such, has been abolished in favor of comparative negligence.

Opinion may be found at:

"The simple tool doctrine is clearly grounded in the principle of implied assumption of risk, unequivocally abolished in Perez. Because the simple tool doctrine is a variation of assumption of risk, we hold that it too must be considered abolished in favor of comparative negligence." Id.