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:
http://www.tba2.org/tba_files/TCA/2008/jenkinsd_092308.pdf
"[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 23, 2008
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:
http://www.tba2.org/tba_files/TCA/2008/newmant_091708.pdf
"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.
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:
http://www.tba2.org/tba_files/TCA/2008/newmant_091708.pdf
"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:
http://www.tba2.org/tba_files/TCA/2008/johnsonj_091708.pdf
"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).
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:
http://www.tba2.org/tba_files/TCA/2008/johnsonj_091708.pdf
"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"
JOSEPH AND KIMBERLI DAVIS v. PATRICK J. MCGUIGAN, ET AL. (Tenn.Ct.App. September 11, 2008).
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:
http://www.tba2.org/tba_files/TCA/2008/davisj_091108.pdf
"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).
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:
http://www.tba2.org/tba_files/TCA/2008/davisj_091108.pdf
"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:
http://www.tba2.org/tba_files/AG/2008/ag_08_143.pdf
"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:
http://www.tba2.org/tba_files/AG/2008/ag_08_143.pdf
August 28, 2008
Easement reserved on a recorded plat is "express" and does not terminate with the reason for prescription
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).
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 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.
July 31, 2008
No compensation for inverse condemnation resulting from "careful" construction by the government; No nuisance if government's conduct is reasonable
J. HANNAH FRANK v. THE GOVERNMENT OF THE CITY OF MORRISTOWN (Tenn.Ct.App. July 31, 2008).
The city of Morristown appeals a judgment in favor of a commercial leaseholder who brought an inverse condemnation and nuisance action against the city for damages allegedly sustained as a result of dirt, debris, odor, noise, and interference with ingress and egress caused by the city's road and bridge construction project. After careful review, we reverse the judgment of the trial court as to the inverse condemnation claim upon our finding that the damages complained of by the leaseholder were the necessary effects of careful construction and not different from the effects suffered by the leaseholder's neighbors and because damages resulting from inconvenience during construction are not recoverable. We also reverse the trial court's judgment in favor of the leaseholder upon the claim of nuisance because the leaseholder failed to establish that the construction project was conducted in an unreasonable manner.
Opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2008/frankj_073108.pdf
"'Inverse condemnation' is the popular description for a cause of action brought by a property owner to recover the value of real property that has been taken for public use by a governmental defendant even though no formal condemnation proceedings under the government’s power of eminent domain have been instituted." Id. (citations omitted).
"Owners of land, no part of which has been taken for public purposes, are not entitled to compensation for damages naturally and unavoidably resulting from the careful construction and operation of the public improvement which damages are shared generally by owners whose lands lie within the range of the inconveniences necessarily attending that improvement." Id. (citations omitted).
"A nuisance has been defined as anything which annoys or disturbs the free use of one’s property, or which renders its ordinary use or physical occupation uncomfortable. Under the circumstances presented in the present matter, it is clear that the noise, dirt, debris, and obstruction complained of annoyed or disturbed Ms. Frank’s free use of her leasehold and rendered its ordinary use uncomfortable. However, as this court has further noted, the key element of any nuisance is the reasonableness of the defendant’s conduct under the circumstances. Acts of the government are not nuisances per se and it is actionable only when a nuisance is established by evidence that the governmental function is conducted in an unreasonable manner. Our careful review of the record reveals no finding by the trial court that the City acted unreasonably at any time during the construction project." Id. (citations and quotations omitted).
The city of Morristown appeals a judgment in favor of a commercial leaseholder who brought an inverse condemnation and nuisance action against the city for damages allegedly sustained as a result of dirt, debris, odor, noise, and interference with ingress and egress caused by the city's road and bridge construction project. After careful review, we reverse the judgment of the trial court as to the inverse condemnation claim upon our finding that the damages complained of by the leaseholder were the necessary effects of careful construction and not different from the effects suffered by the leaseholder's neighbors and because damages resulting from inconvenience during construction are not recoverable. We also reverse the trial court's judgment in favor of the leaseholder upon the claim of nuisance because the leaseholder failed to establish that the construction project was conducted in an unreasonable manner.
Opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2008/frankj_073108.pdf
"'Inverse condemnation' is the popular description for a cause of action brought by a property owner to recover the value of real property that has been taken for public use by a governmental defendant even though no formal condemnation proceedings under the government’s power of eminent domain have been instituted." Id. (citations omitted).
"Owners of land, no part of which has been taken for public purposes, are not entitled to compensation for damages naturally and unavoidably resulting from the careful construction and operation of the public improvement which damages are shared generally by owners whose lands lie within the range of the inconveniences necessarily attending that improvement." Id. (citations omitted).
"A nuisance has been defined as anything which annoys or disturbs the free use of one’s property, or which renders its ordinary use or physical occupation uncomfortable. Under the circumstances presented in the present matter, it is clear that the noise, dirt, debris, and obstruction complained of annoyed or disturbed Ms. Frank’s free use of her leasehold and rendered its ordinary use uncomfortable. However, as this court has further noted, the key element of any nuisance is the reasonableness of the defendant’s conduct under the circumstances. Acts of the government are not nuisances per se and it is actionable only when a nuisance is established by evidence that the governmental function is conducted in an unreasonable manner. Our careful review of the record reveals no finding by the trial court that the City acted unreasonably at any time during the construction project." Id. (citations and quotations omitted).
Breach of construction contract fails because signature was induced for discussion purposes only
THOMAS BUILDERS, INC. v. SHAILESH PATEL, ET AL. (Tenn.Ct.App. July 31, 2008).
Thomas Builders, Inc. sued Shailesh Patel and his LLC, alleging that Mr. Patel breached a construction contract. The parties had been in negotiations to build a hotel in downtown Knoxville. Thomas Builders' president, Darrell Thomas, claims that he and Mr. Patel agreed to a binding contract; Mr. Patel claims that no contract was ever made. At a bench trial, Mr. Patel testified that Mr. Thomas asked him to sign the purported contract as an "indication that I am really serious to continue discussions." This testimony was not directly rebutted. At the conclusion of the trial, the trial court stated that it believed Mr. Patel's testimony, and held that there was no breach. We affirm.
Opinion may be found at TBA website:
http://www.tba2.org/tba_files/TCA/2008/thomasbuilders_073108.pdf
"If, as the court declared in its primary holding, Mr. Thomas induced Mr. Patel’s signature by telling him that the signature would only indicate that Mr. Patel was serious about continuing discussions, then it follows necessarily that Mr. Patel’s signature was not an acceptance of an offer by Thomas Builders. Indeed, on these facts, Mr. Thomas was not even making an offer; asking someone to sign a "proposal” in order to prove his "seriousness" is not the same thing as making a contractual offer to build a hotel. And if Mr. Patel’s signature was not given in response to an offer, it cannot have been an acceptance, nor a counter-offer, nor an acceptance in escrow." Id. (quotations omitted).
"The dispute in this case is not over the terms of the contract, but over whether a contract was formed at all, and we do not believe Mr. Patel’s scribbling of the word “accepted” necessarily speaks for itself in that regard. ... [W]e hold that the evidence does not preponderate against the trial court’s factual finding that Mr. Thomas induced Mr. Patel to sign the proposal “for discussion purposes only.” Based on these facts, we find that no contract was formed. Thomas Builders’ breach of contract claim therefore must fail." Id. (quotations omitted).
Thomas Builders, Inc. sued Shailesh Patel and his LLC, alleging that Mr. Patel breached a construction contract. The parties had been in negotiations to build a hotel in downtown Knoxville. Thomas Builders' president, Darrell Thomas, claims that he and Mr. Patel agreed to a binding contract; Mr. Patel claims that no contract was ever made. At a bench trial, Mr. Patel testified that Mr. Thomas asked him to sign the purported contract as an "indication that I am really serious to continue discussions." This testimony was not directly rebutted. At the conclusion of the trial, the trial court stated that it believed Mr. Patel's testimony, and held that there was no breach. We affirm.
Opinion may be found at TBA website:
http://www.tba2.org/tba_files/TCA/2008/thomasbuilders_073108.pdf
"If, as the court declared in its primary holding, Mr. Thomas induced Mr. Patel’s signature by telling him that the signature would only indicate that Mr. Patel was serious about continuing discussions, then it follows necessarily that Mr. Patel’s signature was not an acceptance of an offer by Thomas Builders. Indeed, on these facts, Mr. Thomas was not even making an offer; asking someone to sign a "proposal” in order to prove his "seriousness" is not the same thing as making a contractual offer to build a hotel. And if Mr. Patel’s signature was not given in response to an offer, it cannot have been an acceptance, nor a counter-offer, nor an acceptance in escrow." Id. (quotations omitted).
"The dispute in this case is not over the terms of the contract, but over whether a contract was formed at all, and we do not believe Mr. Patel’s scribbling of the word “accepted” necessarily speaks for itself in that regard. ... [W]e hold that the evidence does not preponderate against the trial court’s factual finding that Mr. Thomas induced Mr. Patel to sign the proposal “for discussion purposes only.” Based on these facts, we find that no contract was formed. Thomas Builders’ breach of contract claim therefore must fail." Id. (quotations omitted).
July 30, 2008
Judgment for fraudulent misrepresentation against seller for covering up termite damage; 30% comparative fault against termite company
STEVE L. ELCHLEPP, JR., ET AL. v. EMOL HATFIELD, ET AL (Tenn.Ct.App. July 30, 2008).
The buyers of a house and real property brought this action against the sellers and a termite control company, alleging that the house was completely infested with termites to the extent that it was worthless and unsalvageable. The buyers charged the sellers with fraudulent and negligent misrepresentation, fraudulent concealment of the extent of termite damage, and breach of contract. The buyers alleged that the termite control company was negligent in its inspection of the house.
Following a six-day jury trial, the jury found in favor of the buyers, holding the sellers 70 percent at fault and the termite control company 30 percent at fault and awarding the buyers $55,000 in damages. The trial court also awarded the buyers $25,000 in attorney's fees pursuant to the real estate sales contract. We find that the jury verdict is supported by material evidence and that the trial court committed no reversible error in its jury instructions and evidentiary rulings, and consequently affirm the trial court's judgment.
Opinion located on the TBA website:
http://www.tba2.org/tba_files/TCA/2008/elchlepps_073008.pdf
"The clear and convincing standard of proof is appropriate to those cases where a party seeks the reform or rescission of a written instrument due to fraudulent inducement. But in all other cases involving claims of fraud, the standard of proof is preponderance of evidence." Id. (quotation omitted).
"Limit your damage consideration specifically to termite damage and the value of the land is not a consideration in determining the amount of damages in this case." Id. (quoting and affirming trial court's jury instruction).
"When a party intentionally misrepresents a material fact or produces a false impression in order to mislead another or to obtain an undue advantage over him, there is a positive fraud. The representation must have been made with knowledge of its falsity and with a fraudulent intent. The representation must have been to an existing fact which is material and the plaintiff must have reasonably relied upon that misrepresentation to his injury." Id. (quotation omitted).
"Simply stated, the central factual issue in this case was the credibility of the Hatfields’ assertion that they were unaware that the house was infested with termites. There is an abundance of evidence supporting the conclusion, obviously drawn by the jury, that the Hatfields were not believable on this point. ... The testimony of Mr. Elchlepp, including his testimony that Mr. Hatfield assured him that the termite damage discovered before closing was a limited and localized problem, also supports the jury verdict. ... We find that there is ample material evidence supporting the jury verdict in the case, and the Hatfields’ argument to the contrary is without merit." Id.
The buyers of a house and real property brought this action against the sellers and a termite control company, alleging that the house was completely infested with termites to the extent that it was worthless and unsalvageable. The buyers charged the sellers with fraudulent and negligent misrepresentation, fraudulent concealment of the extent of termite damage, and breach of contract. The buyers alleged that the termite control company was negligent in its inspection of the house.
Following a six-day jury trial, the jury found in favor of the buyers, holding the sellers 70 percent at fault and the termite control company 30 percent at fault and awarding the buyers $55,000 in damages. The trial court also awarded the buyers $25,000 in attorney's fees pursuant to the real estate sales contract. We find that the jury verdict is supported by material evidence and that the trial court committed no reversible error in its jury instructions and evidentiary rulings, and consequently affirm the trial court's judgment.
Opinion located on the TBA website:
http://www.tba2.org/tba_files/TCA/2008/elchlepps_073008.pdf
"The clear and convincing standard of proof is appropriate to those cases where a party seeks the reform or rescission of a written instrument due to fraudulent inducement. But in all other cases involving claims of fraud, the standard of proof is preponderance of evidence." Id. (quotation omitted).
"Limit your damage consideration specifically to termite damage and the value of the land is not a consideration in determining the amount of damages in this case." Id. (quoting and affirming trial court's jury instruction).
"When a party intentionally misrepresents a material fact or produces a false impression in order to mislead another or to obtain an undue advantage over him, there is a positive fraud. The representation must have been made with knowledge of its falsity and with a fraudulent intent. The representation must have been to an existing fact which is material and the plaintiff must have reasonably relied upon that misrepresentation to his injury." Id. (quotation omitted).
"Simply stated, the central factual issue in this case was the credibility of the Hatfields’ assertion that they were unaware that the house was infested with termites. There is an abundance of evidence supporting the conclusion, obviously drawn by the jury, that the Hatfields were not believable on this point. ... The testimony of Mr. Elchlepp, including his testimony that Mr. Hatfield assured him that the termite damage discovered before closing was a limited and localized problem, also supports the jury verdict. ... We find that there is ample material evidence supporting the jury verdict in the case, and the Hatfields’ argument to the contrary is without merit." Id.
July 10, 2008
Noncompletion is not contemplated by the Tennessee construction statute of repose
PIERRE PONS, ET AL. v. BARRY HARRISON d/b/a B. HARRISON HOUSEWRIGHTS (Tenn.Ct.App. July 10, 2008).
Defendant Homebuilder left plaintiff Homeowners' job site before completing construction of their residence. Homebuilder appeals the chancery court's confirmation of an adverse arbitration award, arguing that the arbitrator exceeded his authority by refusing to enforce a provision of the contract that would have rendered the plaintiff Homeowners' suit time barred. The limitation provision applied to suits for defective improvements to real estate. The gravamen of this breach of contract action was partial performance, not defective performance. Further, the arbitrator awarded to Homeowners the cost to complete the construction plus interest, attorney's fees, and arbitration costs. Finding that the limitation period does not apply to this action, we affirm.
Opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2008/ponsp_071008.pdf
"Paragraph 14 of the contract, which addressed the builder’s limited warranty and provided for the repair of covered defects, contained the provision in question. Subparagraph (F) provided as follows:
Repairs. Upon receipt of Owner’s written report of a defect, if the defective item is covered by Builder’s Limited Warranty, Builder shall repair or replace it at no charge to Owner, within thirty (30) days, (extended for delays caused by weather conditions, labor problems or material shortages). Notwithstanding the foregoing, Builder and Owner expressly waive the statutory limitations on actions for defective improvements of real estate, as provided by Tennessee Code Section 28-3-201 et seq., and in lieu thereof covenant and agree that all actions recoverable under this statutory provision shall be brought within one (1) year after substantial completion of the House." Id.
"To determine whether this lawsuit falls within the ambit of the referenced statute of repose, thus making it subject to the one-year limitation, we look to the gravamen of the complaint and to the basis for which the damages are sought. [] Although there are some references made to inferior workmanship[] in the complaint, the suit plainly rests upon nonfeasance more so than malfeasance, or partial performance rather than defective performance. The Ponses averred, and it is undisputed, that the following items were left uncompleted by Mr. Harrison ... . Moreover, it appears that the arbitrator awarded them the cost to complete the residence." Id. (citations omitted).
"In this breach of contract case, the chief complaint was nonfeasance, not malfeasance. This distinction removes the action from the purview of Tennessee Code Annotated Section 28-3-202 because the statute applies to actions predicated upon defective improvements to real property, property damage, and personal injury or wrongful death attributable to the defective work. Because the statute does not apply, neither do the contractual waiver and one-year limitation period. We accordingly affirm the chancellor’s confirmation of the award." Id.
Defendant Homebuilder left plaintiff Homeowners' job site before completing construction of their residence. Homebuilder appeals the chancery court's confirmation of an adverse arbitration award, arguing that the arbitrator exceeded his authority by refusing to enforce a provision of the contract that would have rendered the plaintiff Homeowners' suit time barred. The limitation provision applied to suits for defective improvements to real estate. The gravamen of this breach of contract action was partial performance, not defective performance. Further, the arbitrator awarded to Homeowners the cost to complete the construction plus interest, attorney's fees, and arbitration costs. Finding that the limitation period does not apply to this action, we affirm.
Opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2008/ponsp_071008.pdf
"Paragraph 14 of the contract, which addressed the builder’s limited warranty and provided for the repair of covered defects, contained the provision in question. Subparagraph (F) provided as follows:
Repairs. Upon receipt of Owner’s written report of a defect, if the defective item is covered by Builder’s Limited Warranty, Builder shall repair or replace it at no charge to Owner, within thirty (30) days, (extended for delays caused by weather conditions, labor problems or material shortages). Notwithstanding the foregoing, Builder and Owner expressly waive the statutory limitations on actions for defective improvements of real estate, as provided by Tennessee Code Section 28-3-201 et seq., and in lieu thereof covenant and agree that all actions recoverable under this statutory provision shall be brought within one (1) year after substantial completion of the House." Id.
"To determine whether this lawsuit falls within the ambit of the referenced statute of repose, thus making it subject to the one-year limitation, we look to the gravamen of the complaint and to the basis for which the damages are sought. [] Although there are some references made to inferior workmanship[] in the complaint, the suit plainly rests upon nonfeasance more so than malfeasance, or partial performance rather than defective performance. The Ponses averred, and it is undisputed, that the following items were left uncompleted by Mr. Harrison ... . Moreover, it appears that the arbitrator awarded them the cost to complete the residence." Id. (citations omitted).
"In this breach of contract case, the chief complaint was nonfeasance, not malfeasance. This distinction removes the action from the purview of Tennessee Code Annotated Section 28-3-202 because the statute applies to actions predicated upon defective improvements to real property, property damage, and personal injury or wrongful death attributable to the defective work. Because the statute does not apply, neither do the contractual waiver and one-year limitation period. We accordingly affirm the chancellor’s confirmation of the award." Id.
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