June 30, 2008

Court awards sanctions and attorneys fees for intereference with a prescriptive easement

BRUCE WAYNE FERGUSON v. DARRYL SHARP, ET AL. (Tenn.Ct.App. June 30, 2008).

Bruce Wayne Ferguson (“the Plaintiff”) filed this lawsuit after Darryl and Denise Sharp (“the Defendants”) installed a gate on a right-of-way over their land that the Plaintiff utilized to reach his property. The Defendants claimed the gate was necessary for their safe use and enjoyment of their land because the right-of-way area was being subjected to trespassing, vandalism, and theft. The trial court agreed with the Plaintiff that the gate was not necessary and permanently enjoined the Defendants from maintaining it on the right-of-way. The Defendants appeal the judgment of the trial court. We affirm.

Opinion may be found at the TBA website:

"The preponderance of the evidence presented to the court establishes that the Defendants have utilized their gate in an improper and illegal manner to deny the Plaintiff access to his property and to harass him despite the court order prohibiting these actions by the Defendants. The Plaintiff has an easement by prescription free of the impairment of the easement by the erection of gates." Id.

"This case involved a clear violation of the orders of the trial court. Our review of the record reveals that the Defendants interfered with and denied access by the Plaintiff to his property by use of the easement. The Plaintiff had to file motions requesting that the court find the Defendants in contempt of court. ... The trial court had clear authority to assess attorney’s fees against the Defendants pursuant to Tenn. Code Ann. § 29-9-105. The award served to compensate the Plaintiff for the loss he sustained as a result of the actions of the Defendants." Id.

June 27, 2008

Court limits use of an easement to the extent that a driveway runs onto the adjacent property; Dominant estate may not materially increase burden

GARY W. FRYE, ET AL. v. CARL PRESLEY, ET AL. (Tenn.Ct.App. June 27, 2008).

This case involves a dispute between the owners of adjoining properties over the use of a driveway. The dispute focuses on the easement rights of the defendants, if any, to a right-of-way across the north edge of the plaintiffs' property and a portion of the west edge. The court, following a bench trial, made findings regarding the subject driveway. The defendants appeal. We affirm in part and reverse in part.

Opinion may be found at:

"An easement is a right an owner has to some lawful use of the real property of another. [] Any easement in this case would be an easement appurtenant, involving two tracts of land – the dominant tenement (in this case, the defendants’ property) and the servient tenement (the plaintiffs’ property). The dominant tenement benefits in some way from the use of the servient tenement. [] A prescriptive easement arises when a person acting under an adverse claim of right makes uninterrupted, open, visible, and exclusive use of another’s property for at least twenty (20) years with the owner’s knowledge and acquiescence. []." Id. (citations omitted).

"While the Presleys’ deed to their son refers to an easement 30 feet in width, that easement, to the extent it crosses the plaintiffs’ property, is limited in width to the 14 feet found by the trial court. ... Simply stated, the son’s easement over the Fryes’ property is limited to a width of 14 feet. If the driveway on the ground is more than 14 feet wide, the excess over 14 feet must be located entirely on the Presleys’ property." Id. (quotations to transcript omitted).

"[T]he owner of an easement “cannot materially increase the burden of it upon the servient estate or impose thereon a new and additional burden.” [] Accordingly, the use of the driveway has been expanded over time from originally benefitting only Mr. and Mrs. Presley to now being used by at least nine drivers, owning a combined fleet of approximately 15 vehicles including boats, trailers, and farm equipment. Mr. Frye testified that a number of the defendants speed along the driveway and “create the nuisance of dust”[]. ... It is clear to us that this testimony is related to the roadway along the northern section of the Frye property, not the portion of the driveway along a portion of their western boundary. The trial court concluded that the defendants’ use of the easement along the northern boundary did not result in an unreasonable increase in the burden to the servient estate. ... Furthermore, our review of the record likewise reveals no evidence of an increased burden along the western section of the easement. Accordingly, we find the plaintiffs’ argument to be without merit." Id. (citations omitted).

Notemakers obligated to indemnify owner of land that secured the note after foreclosure sale


This appeal focuses on a dispute as to whether the defendants, Jimmie R. Jones ("Mrs. Jones") and Larry D. Jones ("Mr. Jones"), are obligated to indemnify the plaintiff, the Estate of Lorine Goodwin Hindmon ("the Estate"), for the value of property owned by Mrs. Hindmon that was foreclosed upon and sold, the proceeds from which were applied against a debt for which the Joneses were obligated. The trial court held that the plaintiff had a right to indemnification from the defendants and, as a consequence of that holding, granted the plaintiff summary judgment. We affirm.

Opinion may be found at:

"The Estate is entitled to a judgment for indemnity against Mr. and Mrs. Jones. Indemnity may be recovered on the basis of implied indemnity. A right to indemnity “exists whenever one party is exposed to liability by the action of another who, in law or equity, should make good the loss of the other.” 41 Am. Jur. 2 Indemnity § 25 (1968). It is undisputed that Mr. and Mrs. Jones owed a note obligation to Capital Bank. This note obligation was secured by two parcels of real estate owned by the Decedent. The note obligation went into default. The note and deed of trust were subsequently assigned to the Moores, who foreclosed upon the Decedent’s real estate. The amount of $330,000 was realized from the sale of the property and applied toward the note obligations owed by Mr. and Mrs. Jones. In Jarnigen v. Stratton, 32 S.W. 625 (Tenn. 1895), the Tennessee Supreme Court noted as follows:
Mr. Story says: “Where the note is the several as well as the joint note of the makers, the holder is at liberty to elect upon whom he will make the demand and presentment.” Story, Prom. Notes, § 256. To the same effect, see 1 Daniel, Neg. Inst. § 596. The reason of the rule in both cases is the same. It is only necessary to make demand in the one case of all the makers where they are joint makers, and to give notice to all the indorsers where they are joint indorsers, to bind those notified. If they are joint and several indorsers, notice to any one is sufficient to bind him. Id., 32 S.W. at 626. The estate was entitled to choose from whom it desired to seek indemnification. As to the assertion by Mr. and Mrs. Jones that this claim is barred by any statute of limitation, the contention lacks merit, as the action did not arise until the foreclosure occurred in 2006." Id.

June 26, 2008

Restrictive covenants may not apply if the deed is ambiguous; Negative reciprocal easements require a common plan or scheme

GREIG MASSEY, ET AL., v. R.W. GRAF, INC., ET AL. (Tenn.Ct.App. June 26, 2008)

Plaintiffs brought this declaratory judgment action, asking the Court to declare that building restrictions on platted parcels of property from a common grantor applied to a non-platted parcel purchased by defendants from a subsequent grantor. The Trial Court, responding to a summary judgment motion, made detailed findings of facts, and concluded that the "subject to" language in the deeds was ambiguous and construed the language against the inclusion of restrictions on any portion of the property that lay outside the platted subdivisions. Plaintiffs have appealed, and we affirm the Judgment of the Trial Court.

Opinion may be found at:

Dissenting opinion may be found at:

"Because restrictive covenants are in derogation of the fundamental right of free use and enjoyment of real property, they are not favored under Tennessee law. [] Restrictive covenants are strictly construed. [] Any doubt concerning the applicability of a restrictive covenant will be resolved against the restriction, [] and, likewise, any ambiguity in the terms of the restrictive covenant will be resolved against the restriction. [] Similarly, when the terms of a covenant may be construed more than one way, the courts must resolve any ambiguities against the party seeking to enforce the restriction and in a manner which advances the unrestricted use of the property. []" Id. (citations omitted).

"The language in the Warranty Deed from the Dean Estate to the University of Tennessee is as follows: “This conveyance, however, is made subject to Restrictive Covenants applicable to all of the lots located in the Deanbrook Sub-divisions of record in book of deeds 954, page 564, in the Register’s Office of Knox County, Tennessee, to which said instrument specific reference is hereby made for said conditions, limitations, reservations and restrictions.” This language is susceptible to two very different meanings. It could mean that the referenced restrictive covenants applies to all of the property conveyed including the unsubdivided tract, that included the Graf Property. Or it could mean that the Dean Estate intended to have the referenced restrictive covenants apply only to the lots within the Deanbrook subdivisions as was the original intent when the restrictions were recorded in 1954. Accordingly, we conclude that ambiguity exists." Id.

"Both the grantor and the fellow grantees whose titles contain similar restrictive covenants may enforce their reciprocal negative easement rights in either a legal or an equitable proceeding. [] Grantees seeking equitable enforcement of a reciprocal negative easement must prove: (1) that the parties derived their titles from a common grantor; (2) that the common grantor had a general plan for the property involved; (3) that the common grantor intended for the restrictive covenant to benefit the property involved; and (4) that the grantees had actual or constructive knowledge of the restriction when they purchased their parcels. [] Grantees seeking judicial enforcement of their negative reciprocal easement rights are not necessarily limited to the recitals in the deeds to prove their case. In addition to the deeds from the common grantor [], they may also use recorded plats [], or parol evidence of the circumstances surrounding the purchase of the property. []" Id. (citations omitted).

"In this case, the properties known as Deanbrook Subdivision were platted with restrictions that expressly applied only to Deanbrook Subdivisions, and were recorded. The tract of land that encompassed the Dean properties adjacent to the Deanbrook Subdivisions was not platted and was not expressly included in the recorded restrictions. Further, there was no general plan or scheme of development to include the unsubdivided properties in the Deanbrook Subdivisions[.]" Id.

DISSENTING OPINION: "When I give the words in the subject language their usual and ordinary meaning – as I am required to do – I do not find the warranty deed to be ambiguous. As I understand the language at hand, it cannot be construed as being limited to the conveyed lots in the platted subdivisions. The language at issue addresses “[t]his conveyance.” The only reasonable interpretation of these two words is that they refer to the conveyed platted lots in the Deanbrook Subdivisions and the conveyed acreage outside the platted subdivisions. This is what was “convey[ed].” There can be no doubt about this." Id.

June 24, 2008

Local governments may enforce strict submission requirements for service contracts

BAIRD TREE COMPANY, INC. v. CITY OF OAK RIDGE, ET AL. (Tenn.Ct.App. June 24, 2008).

Baird Tree Company, Inc. ("Plaintiff") was one of three bidders on a tree trimming and removal project submitted for bid by the City of Oak Ridge ("Oak Ridge"). Plaintiff was notified by letter of several deficiencies in its bid and Oak Ridge requested that the bid be supplemented with additional information. Plaintiff explicitly refused to do so and informed Oak Ridge that its bid was fine just the way it was.

After the contract was awarded to a different company, Plaintiff filed suit claiming it should have been awarded the contract because it was the lowest bidder and further claiming that Oak Ridge violated the Tennessee Trade Practices Act, Tenn. Code Ann. section 47-25-101, et seq. Oak Ridge filed a motion for summary judgment claiming, among other things, that it was entitled to summary judgment because Plaintiff's bid was invalid to begin with and the Trade Practices Act did not apply to this case. The Trial Court agreed and granted the motion for summary judgment. Plaintiff appeals raising numerous issues. We affirm.

Opinion may be found at:

"The undisputed material facts demonstrate that there were numerous deficiencies in Plaintiff’s original bid. Although not required to do so, Dover sent a letter to Plaintiff’s owner and president requesting the additional necessary information. Mr. Baird refused to supply any additional information and even went so far as to inform Dover that he (i.e., Mr. Baird) would be sending questions to Dover that he wanted answered. The Trial Court correctly characterized this response as being “in your face.” This Court is at a loss as to how a company can send such a response to legitimate questions that were raised about its bid, and then complain when it is not awarded the bid." Id.