September 30, 2008

Contingent benefits offered under annexation in a plan of services are not subject to mandamus under Tenn. Code Ann. § 6-51-108.


The State of Tennessee, proceeding on relation of six individuals and one entity (who, for ease of reference, will collectively be referred to as "the plaintiffs"), sought mandamus in 2002 to force the City of Church Hill ("the City") to extend a sewer line to the individuals' homes. The individuals are residents of a neighborhood in Hawkins County that was annexed by the City in 1988. They claim that the City failed to adhere to the plan of services adopted as part of the annexation process, and that the plaintiffs are therefore entitled to mandamus under Tenn. Code Ann. section 6-51-108 (2005). The plan of services adopted in 1988 states that "[a] sanitary sewer system will be provided as soon as economically feasible."

The trial court granted the plaintiffs summary judgment, finding that the long delay in installing a sewer system, which continued at the time of trial, was unreasonable, and that there were no disputed issues of material fact preventing the court from granting mandamus under section 6-51-108. However, the court ordered a trial on the issue of how quickly the City could reasonably install the sewer line. At the conclusion of this limited-purpose trial, the court ordered the City to extend sewer service to the plaintiffs within 16 months. The City appeals. We vacate the trial court's grant of summary judgment and remand for further proceedings.

Opinion may be found at the TBA website:

"The City’s first issue on appeal is whether the trial court erred by applying Tenn. Code Ann. § 6-51-108 retroactively. The City argues that the general presumption against applying laws retroactively ... However, as the plaintiffs correctly point out, this presumption is reversed for statutes which are remedial or procedural in nature. Such statutes apply retrospectively ... unless the legislature indicates a contrary intention or immediate application would produce an unjust result. ... Accordingly, we conclude that the statute is applicable to this case." Id. (citations and quotations omitted).

"The trial court declared this provision “vague,” and on that basis, essentially replaced the phrase “as soon as economically feasible” with the phrase “within a reasonable time.” The court then concluded that an 18-year delay is “unreasonable.” In essence, the court held that the City materially and substantially failed to comply with a requirement that sewer service be provided within a reasonable time after annexation. But no such requirement ever existed, because that is not what the plan of services says." Id. (italics in original).

"[T]he sewer provision is the only portion of the plan of services that is wholly indefinite, hinging upon a contingency – economic feasibility – that may or may not occur. We must assume that the plan’s drafters intended the plain meaning of their words. We therefore conclude that this unique aspect of the sewer provision was not a coincidence, but rather reflected an intentional decision to refrain from promising sewer service with the same sort of unconditional language that was used for other matters elsewhere in the plan. Accordingly, the court erred when it interpreted this provision as an unconditional promise to provide server services within a “reasonable time.”" Id.

Court review of zoning ordinance limited to whether decision has a rational or justifiable basis; Compliance with land use plan not legally required

DENNIS B. GANN, ET AL. v. THE CITY OF CHATTANOOGA, ET AL (Tenn.Ct.App. September 30, 2008).

The plaintiffs, Chattanooga residents whose homes are adjacent to a tract of land that was rezoned to make way for the construction of a grocery store, sought a declaratory judgment that the zoning amendment was illegal. The City of Chattanooga, the Chattanooga City Council, and the developer, Wilwat Properties, Inc., were named as defendants. Plaintiffs argue that the rezoning did not comply with the Hixson-North River Land Use Plan; that the City Council's approval of the application is arbitrarily inconsistent with the council's prior denial of a similar application; and that the council impermissibly relied upon the recommendation of the Hixson North River Leadership Committee - a recommendation that was made at an informal meeting of which the plaintiffs claim to have had no notice. The trial court dismissed the case at the close of the plaintiffs' proof, finding that the plaintiffs had failed to prove that the zoning decision lacked a rational basis or was arbitrary, capricious or unconstitutional. Plaintiffs appeal. We affirm.

Opinion may be found at the TBA website:

"When a municipal governing body acts under its delegated police powers either to adopt or amend a zoning ordinance, it acts in a legislative capacity and the scope of judicial review of such action is quite restricted. [] In fact, legislative classification in a zoning law, ordinance or resolution is valid if any possible reason can be conceived to justify it.” [] Put another way, in cases where the validity of a zoning ordinance is fairly debatable, the court cannot substitute its judgment for that of the legislative authority. If there is a rational or justifiable basis for the enactment and it does not violate any state statute or positive constitutional guaranty, the wisdom of the zoning regulation is a matter exclusively for legislative determination. [] The courts should not interfere with the exercise of the zoning power ... unless the enactment ... is shown to be clearly arbitrary, capricious, or unreasonable, having no substantial relation to the public health, safety, or welfare, or is plainly contrary to the zoning laws. ... The law deliberately makes the plaintiffs’ burden high, out of deference to the legislative power over zoning matters." Id. (citations and quotations omitted).

"[T]he plaintiffs’ extensive elucidation of the action’s non-compliance is ultimately a non-sequitur, because compliance with the Land Use Plan is not legally required. It is a plan, not a law. The City Council is allowed to deviate from it, and did so here." Id.

"The notion that we would invalidate the City Council’s 2006 action because of a perceived inconsistency with the council’s stated rationale for an action on a similar matter, four years prior, totally misconceives our role in cases such as this. ... If we can find any rational basis –
or, stated even more broadly, “any possible reason” – to uphold the council’s decision, we must do so, absent evidence of arbitrary, capricious, or illegal action by the council." Id.

September 24, 2008

Easement by necessity for landlocked property terminates when other means of ingress and egress become available

VICKIE ROBNETT v. EDWARD H. TENISON, JR. (Tenn.Ct.App. September 24, 2008).

The issue is whether a court-ordered easement by necessity for ingress and egress to landlocked property may be terminated on the ground it is no longer necessary because the landlocked owner has an express easement through which that owner has reasonable, although not as desirable, ingress and egress. The trial court denied the petition to terminate the easement by necessity upon a finding it would place an undue burden on the landlocked property owner to have it terminated. We have determined the trial court applied an incorrect legal standard, that of undue burden, to deny the petition to terminate the easement at issue. Easements by necessity are dependent on the necessity that created them; therefore, a way of necessity continues only as long as a necessity for its use continues. The fact that the way of necessity would be the most convenient does not prevent its extinguishment when it ceases to be absolutely necessary. Accordingly, we reverse the decision of the trial court

Opinion may be found at the TBA website:

"[A]n easement by necessity may continue only as long, as a necessity for its use continues [] The fact the way of necessity continues to be the most convenient is not sufficient to prevent its extinguishment if it ceases to be absolutely necessary. [] The easement was created for the purpose of affording Ms. Robnett ingress and egress from a public road. Due to recent improvements to the easement that leads to Highway 412, the easement through Mr. Tenison’s property is no longer absolutely necessary. Because the purpose for which the easement through Mr. Tenison’s property was created no longer exists, there is an end to the easement by necessity through Mr. Tenison’s property." Id. (citations and quotations omitted).

September 23, 2008

Owner who failed to notify State that land purchased for road construction was subject to a lease interest must indemnify State against suit by lessee

STATE OF TENNESSEE, ET AL. v. GOOD TIMES, LTD., ET AL. (Tenn.Ct.App. September 23, 2008).

The State of Tennessee ("State") sued Good Times, Ltd. ("Good Times") and others with regard to real property deeded to the State by Good Times after the State was sued for inverse condemnation by Good Times' lessee, Pun Wun Chan d/b/a #1 China Buffet ("China Buffet"). The State claimed that it was entitled to indemnity from Good Times in the inverse condemnation action under its warranty deed. The Trial Court consolidated the State's case against Good Times with the inverse condemnation action and then bifurcated the trial. The inverse condemnation case was tried before a jury and China Buffet was awarded a judgment against the State. The Trial Court then granted summary judgment to Good Times in the State's case against Good Times and dismissed the State's case. The State appeals to this Court. We vacate the grant of summary judgment to Good Times, grant the State summary judgment against Good Times, and remand this case to the Trial Court for a determination of the amount of damages, and for further proceedings as necessary with regard to all other parties and claims.

Opinion may be found at the TBA website:

"China Buffet had a leasehold interest in the entire property including the portion deeded to the State. China Buffet claimed, and was awarded, incidental damages to its interest in the entire property because the fair market value of the property has been affected by a significant and permanent loss of parking space, which has resulted in the loss of access to and utility of the restaurant." Id. (quotations omitted)

"Plus, the Agreement of Sale executed by Cazana on behalf of Good Times provided a space for Good Times to disclose the names of lessees or any other party who had any interest in the property being conveyed and that space was left blank. Cazana could have filled in this blank and taken this opportunity to inform the State that China Buffet had not been compensated by Good Times for its interest in the Property. He did not." Id.

"Substantial completion" under the construction statute of repose occurs when a residential structure can be used for its intended purpose

DEBORAH JENKINS as Personal Representative of THE ESTATE OF MALCOM WILLIAMS et al v. SOUTHLAND CAPITAL CORPORATION et al (Tenn.Ct.App. September 23, 2008).

This is a consolidated wrongful death and personal injury case. In May 2002, three young boys walking beside the road were struck by a drunken driver in a residential subdivision. Two were killed, the third severely injured. The plaintiffs sued the developers of the subdivision, arguing that the absence of sidewalks in the area where the boys were walking was a cause of the accident. The trial court granted summary judgment in favor of the developers on grounds that the plaintiffs' lawsuit was time-barred under the four-year statute of repose for improvements to real property, T.C.A. section 28-3-202. We agree with the trial court that the improvements to the real property on which the accident occurred were substantially completed more than four years prior to the filing of the lawsuits under the statutory definition at T.C.A. section 28-3-201(2), and therefore affirm.

Opinion may be found at TBA website:

"[T]he absence of sidewalks on the two lots – is too circumscribed an interpretation of the statute. Concomitantly, defining the “real property” at issue to mean the entire subdivision is overly broad. Both interpretations defeat the essential purpose of Section 28-3-202, that is, to limit claims to those arising within four years after substantial completion of the improvements to the real property at issue." Id.

"[S]ubstantial completion would occur under the facts of this case when the lot at issue, including but not limited to the house, can be used for its intended purpose as a residence. ... [T]his may or may not coincide with the approval of a governmental entity ... ; passing such a final inspection is indicative of substantial completion but not necessarily determinative. Under the facts of this case, however, it is undisputed that the homes were transferred to individual homeowners the same year, 1995, and had been occupied as residences thereafter. The Plaintiffs put forth no evidence, save the absence of sidewalks, indicating that the lots had not been used for their intended purpose, as residences, since the transfer to individual homeowners. Here, the defect focused on by the Plaintiffs is the absence of sidewalks on these lots. However important that defect may be in the context of the Plaintiffs’ claims, it is not a defect that would prevent the lots from being used for their intended purpose, as residences." Id.

September 17, 2008

Court finds against landowner who argued different easement theories for access to a secluded portion of property

TERESA WALKER NEWMAN v. WAYNE WOODARD, ET AL. (Tenn.Ct.App. September 17, 2008).

This case concerns the access rights of a landowner to a section of her property divided from the rest of her land by a steep bluff. The trial court held that the landowner did not have an implied easement through her neighbor's land to access her property at the bottom of the bluff because the there was insufficient evidence that the right-of-way preexisted severance of the properties. The trial court determined that Mrs. Newman did not have an implied easement by necessity because there was insufficient evidence that Mrs. Newman would be unable build a road down the bluff for a reasonable cost. Because the evidence does not preponderate otherwise, we affirm that Mrs. Newman does not have an implied easement or an implied easement by necessity over the right-of- way. The trial court also held that Mrs. Newman lacked a prescriptive easement over the right-or- way because she failed to prove that her use was exclusive; we affirm on the basis that Mrs. Newman failed to demonstrate that her use of the right-of-way was continuous.

Opinion may be found at the TBA website:

"Implied Easement. ... The party seeking to establish an easement by implication has the burden of proving the following three elements by a preponderance of the evidence: (1) A separation of title; (2) Necessity that before the separation takes place, the use which gives rise to the easement shall have been so long continued and obvious or manifest as to show that it was meant to be permanent; and (3) Necessity that the easement be essential to the beneficial enjoyment of the land granted or retained." Id.

"the trial court also found that Mrs. Newman failed to present evidence that there was a preexisting route between the two properties at the time of separation. At trial, Mrs. Newman presented the minutes of the Lauderdale County Court dated July 26, 1910, as evidence that both the Woodards’ and Mrs. Newman’s property were once part of the greater “Marley tract” divided in 1910. Although Mrs. Newman presented witnesses that testified that the field road existed for decades before trial, none of the witnesses could testify to the use of the field road before the previous owners severed the property in 1910. The trial court noted evidence that there was no preexisting route in the 1910 County Court Minutes Book and that a surveyor’s map indicated that Lot 7 and Lot 8 of the Marley tract, which comprised the modern-day Newman and Woodard properties, were not cleared at the time of separation." Id.

"Easement by Necessity. ... [A]n implied easement by necessity allows for the establishment of a right-of-way where one previously did not exist. [] An easement by necessity is a type of implied easement based upon the premise that wherever one conveys property he also conveys whatever is necessary for its beneficial use and enjoyment, including access to one’s property. [] The party claiming the right-of-way bears the burden of proving the following: (1) the titles to the two tracts in question must have been held by one person; (2) the unity of title must have been severed by a conveyance of one of the tracts; (3) the easement must be necessary in order for the owner of the dominant tenement to use his land with the necessity existing both at the time of the severance of title and the time of exercise of the easement." Id. (citations omitted).

"Where the party claiming the right can, at reasonable cost, create a substitute on his own estate the easement is not necessary. ... The bulldozer operator ... asserted at trial that for six hundred to a thousand dollars he could improve the overgrown field road so that Mrs. Newman could drive farm equipment down the bluff. Although Mrs. Newman questioned the feasibility and durability of the road Mr. Blankenship claimed he could create, she failed to present evidence at trial contradicting Mr. Blankenship’s testimony that he could create a road at a reasonable expense. ... Mrs. Newman, therefore, failed to prove that the cost of creating a road down the bluff was unreasonable," Id.

"Easement By Prescription. ... In order to demonstrate a prescriptive easement, a claimant must prove that the use and enjoyment of land which gives rise to a prescriptive easement must be adverse, under claim of right, continuous, uninterrupted, open, visible, exclusive, with knowledge and acquiescence of the owner of the servient tenement, and must continue for the full twenty year prescriptive period." Id.

"Mrs. Newman simply failed to demonstrate by clear and convincing evidence that she or her predecessors in title continuously used the field road. The record is not clear how often Mrs. Newman, her family, or her tenants used the field road to access the fifteen acres. ... At most, the evidence indicated that Mrs. Newman’s predecessors intermittently used the road during the years that they may have farmed the fifteen acres of their land. This is insufficient evidence to prove continuous use of the field road by clear and convincing evidence." Id.

Contractual provision requiring approval from an architectural review committee prior to construction of a new home requires a good faith effort

JAMES B. JOHNSON , ET AL v. CHARLIE B. MITCHELL, JR., ET AL. (Tenn.Ct.App. September 17, 2008).

Plaintiffs appeal the Chancery Court's grant of summary judgment in this breach of contract action. Finding no error, we affirm the Chancery Court's judgment.

Opinion may be found at the TBA website:

"Plaintiffs ... entered into a contract with defendant ... for the purchase of an unimproved lot ... on November 11, 2004. The contract price was $150,000.00, to be paid upon approval of the Johnsons’ building plans and their securing a construction loan; they tendered $1,000.00 as an earnest money deposit. The Johnsons were given a copy of design criteria for the subdivision, including architectural guidelines and design review procedures, when they signed the contract; they were also given a copy of the Declaration of Protective Covenants, Conditions and Restrictions for Phase II of Magnolia Vale. The design criteria required the Johnsons to receive approval of their plans from the architectural review committee prior to commencing construction." Id.

"The Johnsons filed suit against CBM and Charlie B. Mitchell, Jr., (“Mitchell”) for breach of contract, asserting that CBM’s action in voiding the contract constituted a breach of the contract
and requesting specific performance." Id.

"[T]he Johnsons were obligated to submit plans to the architectural review committee for approval, with such approval being a precondition of closing on the sale. Approval of the plans was in the sole discretion of the committee and that approval was never obtained. The affidavit of Mr. Lowry established that, as early as August 3, 2005, Mr. Johnson had indicated dissatisfaction with the decisions of the committee rejecting the two sets of plans submitted as of that date and had stated his unwillingness to cooperate further with CBM, thereby supporting CBM’s contention that the Johnsons did not deal in good faith. Inasmuch as a party who has materially breached a contract cannot recover on it [], a finding that the Johnsons breached the contract would negate an essential element of their claim and entitle CBM to judgment as a matter of law. ... The actions and inactions of the Johnsons support a finding that they breached the contract with CBM by repudiating it and in failing and refusing to perform their responsibilities." Id. (citations omitted).

September 11, 2008

Allegedy inflated appraisal made prior to construction of new home cannot support a fraudulent misrepresentation claim; Court endorses "cost approach"


Homeowners filed suit against Appraiser for intentional and negligent misrepresentation and violation of the Tennessee Consumer Protection Act. Appraiser moved for summary judgment on all claims. The trial court denied Appraiser's motion on the negligent misrepresentation claim, but dismissed the intentional misrepresentation claim and the Tennessee Consumer Act claim. During the course of the proceedings, the trial court also excluded certain witnesses who were tendered as experts. Both parties appeal. We affirm the trial court's grant of summary judgment on both claims, and decline to address the remaining issues for lack of justiciability.

Opinion may be found at the TBA website:

"The Appraiser contends that the appraisal is an estimation or opinion, and is not a representation of an existing or past fact. Therefore, the Appraiser argues, an essential element of the Homeowners’ claim for intentional misrepresentation is conclusively negated and summary judgment was proper on this claim. Homeowners argue that the appraisal value was not the opinion of the Appraiser, but rather an opinion he gave which the Appraiser did not have or knew to be false. Although Homeowners’ argument applies to the fourth element for fraudulent misrepresentation, their contention does not change the requirement of the first element - that the defendant make a representation of an existing or past fact. In Tennessee, appraisals are not considered facts, but rather estimates or opinions." Id.

"Further, we note that when the Appraiser conducted the Appraisal, he was appraising a home that had not yet been constructed. The Appraiser used the “cost approach” analysis, and referred to, among other resources, the specifications and building plans provided by the Homeowners. At that point, the Appraiser only had plans for the future Home on which to base his appraisal; he could not verify that the materials planned for in the Home were actually used in the construction or examine the workmanship of the construction. In Tennessee, conjecture or representations concerning future events are not actionable even though they may later prove to be false." Id. (citations omitted).

September 08, 2008

Counties are not required to obtain utility easements to undertake repair of existing sewer lines

Authority of Governmental Entity to Replace/Repair Sewer Lines on Private Property (TN Attorney General Opinion No. 08-143, September 8, 2008).

"The provisions of Tenn. Code Ann. § 7-35-401(c)(1)(D), therefore, effectively eliminate the need for a utility easement when the objective is to reduce sanitary sewer overflows, as long as the private property owner provides consent and agrees to hold the municipality harmless for the work. Once the rehabilitative construction is completed, each affected private property owner would be responsible in the future for maintaining that portion of the sanitary sewer connection that is located on the property of the owner. Tenn. Code Ann. § 7-35-201(2) and § 68-221-209(a)(2)." Id.

Opinion may be found at the TBA website: