KEVIN ORNDORFF ET AL. v. EDWARD RON CALAHAN ET AL. (Tenn. Ct. App. October 10, 2008).
The buyers of a home in Nashville sued the sellers for misrepresentation, fraud, and breach of contract. The proof showed the sellers did not acquire the proper permits and inspections required by the applicable building codes and that work on the plumbing, the electrical system, and the heating and air conditioning system was not performed in accordance with the codes. The sellers did not disclose the lack of permits and improper work on the statutorily required disclosure form. The chancellor found for the buyers. The sellers appealed. We affirm.
Opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2008/orndorffk_101008.pdf
“[T]he defendants, the Calahans, misrepresented material facts when they recklessly and knowingly stated that they were not aware that the room additions, structural modifications, or other alterations or repairs were made without necessary permits. In fact, the Calahans knew that proper building permits had not been issued....”
“[T]he defendants, the Calahans, misrepresented material facts when they recklessly and knowingly stated they were not aware there were - - that room additions and modifications or other alterations and repairs were made not in compliance with building codes,” and that they “breached the contract for sale when they warranted that the sewer and plumbing systems were in good working order.” Id.
May 21, 2009
Installation and maintenance of drainage tile equitably estopps adjoining property owners from challenging right to maintain the drainage tile
CHRIS D. THORNTON, ET AL. v. LESLIE HIGDON, JR., ET AL. (Tenn. Ct. App. October 24, 2008).
The plaintiffs filed this action to quiet title to a twelve-foot strip of property claimed by adjoining property owners, the defendants. The defendants disputed the plaintiffs' claim and pointed to a seventy-foot drainage tile they had constructed and maintained as evidence of their ownership of the disputed strip of land. The trial court found that the boundary line should be set in accordance with the plaintiffs' survey; however, the trial court also found that the plaintiffs were equitably estopped to challenge the defendants' right to maintain the drainage tile. Both parties appeal. We affirm the trial court in all respects.
Opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2008/thorntonc_102408.pdf
"The trial court found that the drainage system was installed with “the knowledge and understanding of the other parties in question, both Willie and Jerry Higdon, who preceded the
Thorntons in their chain of title.” The evidence does not preponderate against the trial court’s findings. We, therefore, affirm the trial court’s ruling that the Higdons have the right to access the drainage system and the right to maintain it in its present location, but they may not expand the drainage system or take any action that would constitute a nuisance." Id.
The plaintiffs filed this action to quiet title to a twelve-foot strip of property claimed by adjoining property owners, the defendants. The defendants disputed the plaintiffs' claim and pointed to a seventy-foot drainage tile they had constructed and maintained as evidence of their ownership of the disputed strip of land. The trial court found that the boundary line should be set in accordance with the plaintiffs' survey; however, the trial court also found that the plaintiffs were equitably estopped to challenge the defendants' right to maintain the drainage tile. Both parties appeal. We affirm the trial court in all respects.
Opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2008/thorntonc_102408.pdf
"The trial court found that the drainage system was installed with “the knowledge and understanding of the other parties in question, both Willie and Jerry Higdon, who preceded the
Thorntons in their chain of title.” The evidence does not preponderate against the trial court’s findings. We, therefore, affirm the trial court’s ruling that the Higdons have the right to access the drainage system and the right to maintain it in its present location, but they may not expand the drainage system or take any action that would constitute a nuisance." Id.
Trusses are not limited common elements but rather common elements and therefore are the responsibility of the Homeowners Association to repair
MICHAEL LLOYD MEIER, ET AL. v. HUNTINGTON RIDGE TOWNHOUSE HOMEOWNERS ASSOCIATION, INC. (Tenn. Ct. App. October 23, 2008).
Homeowners association appeals the grant of summary judgment in favor of owners who sued for a declaration that the Association was responsible for the cost of repair of defective floor trusses. The trial court found that found that the defective floor trusses were considered "common elements" under the covenants of the Association. We affirm the decision of the trial court.
Opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2008/meierm_102408.pdf
"We do not find language in the Declaration of Covenants sufficient to hold that floor trusses should fall within the definition of “limited common elements,” particularly as that definition
incorporates those elements included within the definition of “common elements.” Being a part of the foundation and bearing wall systems, the trusses do not “serv[e] exclusively a single Unit or one or more adjoining units, the benefit or use of which is reserved to the lawful occupants of the Unit or Units”; rather they serve the entire building containing the units. In addition, the
characterization of the trusses as “appurtenances” to each unit is contrary to their function as part of the foundation, which is clearly a “common element.” The specific structural defects at issueaffect the entire structure." Id.
Homeowners association appeals the grant of summary judgment in favor of owners who sued for a declaration that the Association was responsible for the cost of repair of defective floor trusses. The trial court found that found that the defective floor trusses were considered "common elements" under the covenants of the Association. We affirm the decision of the trial court.
Opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2008/meierm_102408.pdf
"We do not find language in the Declaration of Covenants sufficient to hold that floor trusses should fall within the definition of “limited common elements,” particularly as that definition
incorporates those elements included within the definition of “common elements.” Being a part of the foundation and bearing wall systems, the trusses do not “serv[e] exclusively a single Unit or one or more adjoining units, the benefit or use of which is reserved to the lawful occupants of the Unit or Units”; rather they serve the entire building containing the units. In addition, the
characterization of the trusses as “appurtenances” to each unit is contrary to their function as part of the foundation, which is clearly a “common element.” The specific structural defects at issueaffect the entire structure." Id.
April 30, 2009
Plaintiff collaterally estopped because he was previously denied standing in a forfeiture action
GEORGE H. NASON, INDIVIDUALLY & AS TRUSTEE OF THE CHURCH STREET REALTY TRUST v. C & S HEATING, AIR, & ELECTRICAL, INC. AND O’BRIEN HEATING & AIR, INC. (Tenn. Ct. App. April 30, 2009).
Plaintiff appeals summary judgment granted on claims for breach of contract, unjust enrichment and entitlement to quantum meruit relief. The trial court dismissed the complaint based on the doctrine of collateral estoppel finding Plaintiff’s claims or rights to the same property were finally adjudicated in federal court. We affirm.
Opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/nasong_043009.pdf
”In this case, the district court found that Mr. Nason had the necessary standing under Article III but did not have the requisite statutory standing to challenge the forfeiture because he failed comply with Rule C(6) after sufficient constructive notice of the action was given. Mr. Nason’s inability to proceed as a party to the forfeiture action was a problem of his own making. Several attempts were made to personally serve Mr. Nason with notice in addition to the published notices. Despite Mr. Nason’s belief that the breach of contract claims do not arise from or relate to the forfeiture action, the time to challenge the validity of Appellees’ liens and claimed interest in the property was during the civil forfeiture action. Mr. Nason cannot now assert his position on a claim that was settled between the Appellees and the government and approved in a final order of the district court by filing a second suit, regardless of whether the first action was in rem or in personam. Examination of the previous action shows that Mr. Nason had a full and fair opportunity to litigate the issues he now seeks to raise but failed to timely act to use that opportunity when he failed to file an answer or statement of interest. Balancing the concerns of judicial efficiency and fairness to the parties, we find that Mr. Nason is subject to preclusion by collateral estoppel since he could have become a party to the prior litigation.” Id.
Plaintiff appeals summary judgment granted on claims for breach of contract, unjust enrichment and entitlement to quantum meruit relief. The trial court dismissed the complaint based on the doctrine of collateral estoppel finding Plaintiff’s claims or rights to the same property were finally adjudicated in federal court. We affirm.
Opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/nasong_043009.pdf
”In this case, the district court found that Mr. Nason had the necessary standing under Article III but did not have the requisite statutory standing to challenge the forfeiture because he failed comply with Rule C(6) after sufficient constructive notice of the action was given. Mr. Nason’s inability to proceed as a party to the forfeiture action was a problem of his own making. Several attempts were made to personally serve Mr. Nason with notice in addition to the published notices. Despite Mr. Nason’s belief that the breach of contract claims do not arise from or relate to the forfeiture action, the time to challenge the validity of Appellees’ liens and claimed interest in the property was during the civil forfeiture action. Mr. Nason cannot now assert his position on a claim that was settled between the Appellees and the government and approved in a final order of the district court by filing a second suit, regardless of whether the first action was in rem or in personam. Examination of the previous action shows that Mr. Nason had a full and fair opportunity to litigate the issues he now seeks to raise but failed to timely act to use that opportunity when he failed to file an answer or statement of interest. Balancing the concerns of judicial efficiency and fairness to the parties, we find that Mr. Nason is subject to preclusion by collateral estoppel since he could have become a party to the prior litigation.” Id.
April 29, 2009
Statute of repose bars construction claims brought too late; disclosure rule does not apply when claimant should have discovered the defect
KAYE LOCKWOOD v. RONALD G. HUGHES, ET AL. (Tenn. Ct. App. April 29, 2009).
Buyer of home filed complaint against Sellers for, among other things, violation of the Tennessee Consumer Protection Act (“TCPA”). The trial court granted summary judgment to Sellers on the TCPA claim on the ground that it was barred by the statute of repose. Buyer filed a Motion to Alter or Amend the Judgment, raising a new argument, which the trial court denied. On appeal, Buyer challenges: (1) the trial court’s grant of summary judgment, asserting that material facts were in dispute regarding Buyer’s allegation that Sellers fraudulently concealed defects in the home and that the fraudulent concealment tolled the statute of repose and (2) the trial court’s failure to consider the new argument raised in Buyer’s Motion to Alter or Amend. Finding the trial court’s actions to be proper in all respects, we affirm the decision.
Opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/lockwoodk_042909.pdf
”The trial court found that the home was substantially completed on August 1, 1997, and, consequently, the negligent construction and substandard workmanship claim was barred by the statute of limitations since it was brought more than 5 years after the date of substantial completion.” Id.
“To toll the application of the statute of repose based on an allegation of fraudulent concealment, a plaintiff is required to prove the following: (1) that the defendant took affirmative action to conceal the cause of action or remained silent and failed to disclose material facts despite a duty to do so; (2) the plaintiff could not have discovered the cause of action despite exercising reasonable care and diligence; (3) knowledge on the part of the defendant of the facts giving rise to the cause of action; and (4) concealment of material information from the plaintiff... “The tolling doctrine of fraudulent concealment does not apply to cases where the court finds a plaintiff was aware or should have been aware of facts sufficient to put the plaintiff on notice that a specific injury has been sustained as a result of another’s negligent or wrongful conduct.” Id.
“Ms. Lockwood did not have the home inspected prior to closing; that she was aware of a water leak in the home’s basement in 1999; and that she contacted the Hughes when the water leak first appeared but did not inform them during the next three years of the continuing problem. These materials were sufficient to negate an essential element of Ms. Lockwood’s fraudulent concealment claim, viz., that she could not have discovered the cause of action despite exercising reasonable care and diligence.” Id.
Buyer of home filed complaint against Sellers for, among other things, violation of the Tennessee Consumer Protection Act (“TCPA”). The trial court granted summary judgment to Sellers on the TCPA claim on the ground that it was barred by the statute of repose. Buyer filed a Motion to Alter or Amend the Judgment, raising a new argument, which the trial court denied. On appeal, Buyer challenges: (1) the trial court’s grant of summary judgment, asserting that material facts were in dispute regarding Buyer’s allegation that Sellers fraudulently concealed defects in the home and that the fraudulent concealment tolled the statute of repose and (2) the trial court’s failure to consider the new argument raised in Buyer’s Motion to Alter or Amend. Finding the trial court’s actions to be proper in all respects, we affirm the decision.
Opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/lockwoodk_042909.pdf
”The trial court found that the home was substantially completed on August 1, 1997, and, consequently, the negligent construction and substandard workmanship claim was barred by the statute of limitations since it was brought more than 5 years after the date of substantial completion.” Id.
“To toll the application of the statute of repose based on an allegation of fraudulent concealment, a plaintiff is required to prove the following: (1) that the defendant took affirmative action to conceal the cause of action or remained silent and failed to disclose material facts despite a duty to do so; (2) the plaintiff could not have discovered the cause of action despite exercising reasonable care and diligence; (3) knowledge on the part of the defendant of the facts giving rise to the cause of action; and (4) concealment of material information from the plaintiff... “The tolling doctrine of fraudulent concealment does not apply to cases where the court finds a plaintiff was aware or should have been aware of facts sufficient to put the plaintiff on notice that a specific injury has been sustained as a result of another’s negligent or wrongful conduct.” Id.
“Ms. Lockwood did not have the home inspected prior to closing; that she was aware of a water leak in the home’s basement in 1999; and that she contacted the Hughes when the water leak first appeared but did not inform them during the next three years of the continuing problem. These materials were sufficient to negate an essential element of Ms. Lockwood’s fraudulent concealment claim, viz., that she could not have discovered the cause of action despite exercising reasonable care and diligence.” Id.
April 01, 2009
City of Lebanon acting in administrative capacity when it denied PUD; determined to be acting arbitrary and capricious
COST ENTERPRISES, LLC v. CITY OF LEBANON, TENNESSEE (Tenn. Ct. App. April 1, 2009).
Developer sought approval for a planned unit development. The city planning commission approved the development, but the city council did not approve it due to water runoff issues. Developer appealed. The trial court reversed the city council’s denial of the application, finding that the action was properly brought as a common law certiorari action and that the record contained no material evidence to support the city’s decision. The city appealed. We affirm.
Opinion may be found at the TBA website: http://www.tba2.org/tba_files/TCA/2009/costenterprises_040109.pdf
”The City further maintains that no section of the City’s PUD ordinance states that the council must grant an application for a PUD so long as a list of conditions is met. In McCallen, however, the court stated that where a “zoning ordinance provides relief from zoning requirements designed for more conventional development only when a planned development meets the standards of the pre-existing ordinance,” the criteria “are sufficient to require administrative adherence.” Id.
“It is our opinion that the Lebanon City Council was acting in an administrative capacity when it denied Cost’s application for a PUD. Consequently, the challenge to that action by writ of certiorari is proper. Under the writ of certiorari, review of the action of the Lebanon City Council is limited to whether it exceeded its jurisdiction or acted illegally, arbitrarily or fraudulently.” Id.
“The trial court noted that the Regan Smith study “states that the Chestnut Ridge PUD will reduce the drainage rate of water into the surrounding area. Specifically, the report states that ponds included in the Chestnut Ridge PUD design ‘will reduce runoff to the main channel from the south to rates that are less than pre-development flows.’” The City argues that the trial court ignored the portions of the Regan Smith report that called for additional examination into the sink hole, channels, culverts, and 100-year storm event. In our opinion, the trial court did not mention this because it was not relevant. If the flow is “less than pre-development flows,” the effect of the PUD can be nothing but beneficial to the downstream landowners. It appears that the report called for these additional examinations because of flooding events that have already taken place downstream.” Id.
“After a thorough examination of the record, we are convinced that the trial court was correct in its determination that there was no material evidence to support the Lebanon City Council’s decision.” Id.
Developer sought approval for a planned unit development. The city planning commission approved the development, but the city council did not approve it due to water runoff issues. Developer appealed. The trial court reversed the city council’s denial of the application, finding that the action was properly brought as a common law certiorari action and that the record contained no material evidence to support the city’s decision. The city appealed. We affirm.
Opinion may be found at the TBA website: http://www.tba2.org/tba_files/TCA/2009/costenterprises_040109.pdf
”The City further maintains that no section of the City’s PUD ordinance states that the council must grant an application for a PUD so long as a list of conditions is met. In McCallen, however, the court stated that where a “zoning ordinance provides relief from zoning requirements designed for more conventional development only when a planned development meets the standards of the pre-existing ordinance,” the criteria “are sufficient to require administrative adherence.” Id.
“It is our opinion that the Lebanon City Council was acting in an administrative capacity when it denied Cost’s application for a PUD. Consequently, the challenge to that action by writ of certiorari is proper. Under the writ of certiorari, review of the action of the Lebanon City Council is limited to whether it exceeded its jurisdiction or acted illegally, arbitrarily or fraudulently.” Id.
“The trial court noted that the Regan Smith study “states that the Chestnut Ridge PUD will reduce the drainage rate of water into the surrounding area. Specifically, the report states that ponds included in the Chestnut Ridge PUD design ‘will reduce runoff to the main channel from the south to rates that are less than pre-development flows.’” The City argues that the trial court ignored the portions of the Regan Smith report that called for additional examination into the sink hole, channels, culverts, and 100-year storm event. In our opinion, the trial court did not mention this because it was not relevant. If the flow is “less than pre-development flows,” the effect of the PUD can be nothing but beneficial to the downstream landowners. It appears that the report called for these additional examinations because of flooding events that have already taken place downstream.” Id.
“After a thorough examination of the record, we are convinced that the trial court was correct in its determination that there was no material evidence to support the Lebanon City Council’s decision.” Id.
March 26, 2009
Suit for negligent misrepresentation held to be construction defect case; barred by stature of repose; wrongful concealment fails
RON HENRY, ET AL. v. CHEROKEE CONSTRUCTION AND SUPPLY COMPANY, INC. (Tenn. Ct. App. March 26, 2009)
Ron Henry and Linda Henry (“Plaintiffs”) sued Cherokee Construction and Supply Company, Inc. (“Defendant”) alleging damages sustained when a wall in the home that Defendant constructed for Plaintiffs collapsed. Defendant filed a motion for summary judgment. The Trial Court entered an order finding and holding that Plaintiffs’ claim was barred by the four year statute of repose contained in Tenn. Code Ann. section 28-3-201, et seq., and granting Defendant summary judgment. Plaintiffs appeal to this Court. We affirm.
Opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/henryr_032609.pdf
“Plaintiffs argue that they have not sued for damages resulting from a construction defect but instead have sued for “a negligent misrepresentation of completeness and Notice of Completion....” Plaintiffs argue that their claim is based upon the Notice of Completion being negligently filed because Defendant had not actually completed the construction as required by the agreement between the parties.” Id.
“After a careful and thorough review of the record on appeal, we conclude that regardless of how Plaintiffs’ claim is couched, the case at hand is an action “to recover damages for any deficiency in the design, planning, supervision, observation of construction, or construction of an improvement to real property, for injury to property, real or personal, arising out of any such deficiency….” Tenn. Code Ann. § 28-3-202 (2000). The material substantive allegations of Plaintiffs’ complaint relate to Defendant’s alleged negligence in the construction of the house. As such, the Trial Court did not err in applying Tenn. Code Ann. 28-3-202.” Id.
“By its plain and unambiguous language, Tenn. Code Ann. § 28-3-205(b) provides that the statute of repose will not be available “to any person who shall wrongfully conceal any such cause of action.” However, Plaintiffs’ claim with regard to this issue is predicated upon the assertion that Defendant wrongfully concealed construction defects and the fact that the job was not finished according to the contract. As this Court stated in Register v. Goad: “The concealment referred to in the statute is not concealment in the original construction, but rather a concealment by defendant of plaintiff’s cause of action once it arises.” Plaintiffs make no allegation that Defendant did anything to conceal the cause of action once it arose. Rather, the “concealment” complained of by Plaintiffs occurred in the original construction itself. As such, Plaintiffs’ claim for wrongful concealment fails.” Id.
Ron Henry and Linda Henry (“Plaintiffs”) sued Cherokee Construction and Supply Company, Inc. (“Defendant”) alleging damages sustained when a wall in the home that Defendant constructed for Plaintiffs collapsed. Defendant filed a motion for summary judgment. The Trial Court entered an order finding and holding that Plaintiffs’ claim was barred by the four year statute of repose contained in Tenn. Code Ann. section 28-3-201, et seq., and granting Defendant summary judgment. Plaintiffs appeal to this Court. We affirm.
Opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/henryr_032609.pdf
“Plaintiffs argue that they have not sued for damages resulting from a construction defect but instead have sued for “a negligent misrepresentation of completeness and Notice of Completion....” Plaintiffs argue that their claim is based upon the Notice of Completion being negligently filed because Defendant had not actually completed the construction as required by the agreement between the parties.” Id.
“After a careful and thorough review of the record on appeal, we conclude that regardless of how Plaintiffs’ claim is couched, the case at hand is an action “to recover damages for any deficiency in the design, planning, supervision, observation of construction, or construction of an improvement to real property, for injury to property, real or personal, arising out of any such deficiency….” Tenn. Code Ann. § 28-3-202 (2000). The material substantive allegations of Plaintiffs’ complaint relate to Defendant’s alleged negligence in the construction of the house. As such, the Trial Court did not err in applying Tenn. Code Ann. 28-3-202.” Id.
“By its plain and unambiguous language, Tenn. Code Ann. § 28-3-205(b) provides that the statute of repose will not be available “to any person who shall wrongfully conceal any such cause of action.” However, Plaintiffs’ claim with regard to this issue is predicated upon the assertion that Defendant wrongfully concealed construction defects and the fact that the job was not finished according to the contract. As this Court stated in Register v. Goad: “The concealment referred to in the statute is not concealment in the original construction, but rather a concealment by defendant of plaintiff’s cause of action once it arises.” Plaintiffs make no allegation that Defendant did anything to conceal the cause of action once it arose. Rather, the “concealment” complained of by Plaintiffs occurred in the original construction itself. As such, Plaintiffs’ claim for wrongful concealment fails.” Id.
March 19, 2009
Worker willfully disregarded instructions and was injured; thus, his workers' comp. claim was denied
CIVIL CONSTRUCTORS, INC., ET AL. v. GEORGE HAYNES, III (Tenn. Workers’ Comp. Panel, March 19, 2009)
This workers’ compensation appeal has been referred to the Special Workers’ Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated section 50-6-225(e)(3) for a hearing and a report of findings of fact and conclusions of law. Employee was injured on the job, when the dump truck he was driving overturned. Employer denied liability, asserting that the injuries were the direct result of willful misconduct by Employee. The trial court found in favor of Employer on that issue, and denied benefits. Employee has appealed, contending that the evidence preponderates against the trial court’s finding. We affirm the judgment.
Opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TSC_WCP/2009/haynesg_032009.pdf
“Extending deference to the trial court’s implicit finding concerning Employee’s credibility, we conclude that the evidence in this record shows that Employee had an accident on June 5 as a result of driving his truck on the berm; that he was told thereafter by two of his supervisors not to drive his truck on the berm; that he was given the same instruction again on June 16, accompanied by a reference to endangering his job; that he was also warned by a co- worker on the same date that it was unsafe to drive the truck onto the berm; and that Employee disregarded those instructions and warnings, resulting in an accident which caused his injuries.” Id.
This workers’ compensation appeal has been referred to the Special Workers’ Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated section 50-6-225(e)(3) for a hearing and a report of findings of fact and conclusions of law. Employee was injured on the job, when the dump truck he was driving overturned. Employer denied liability, asserting that the injuries were the direct result of willful misconduct by Employee. The trial court found in favor of Employer on that issue, and denied benefits. Employee has appealed, contending that the evidence preponderates against the trial court’s finding. We affirm the judgment.
Opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TSC_WCP/2009/haynesg_032009.pdf
“Extending deference to the trial court’s implicit finding concerning Employee’s credibility, we conclude that the evidence in this record shows that Employee had an accident on June 5 as a result of driving his truck on the berm; that he was told thereafter by two of his supervisors not to drive his truck on the berm; that he was given the same instruction again on June 16, accompanied by a reference to endangering his job; that he was also warned by a co- worker on the same date that it was unsafe to drive the truck onto the berm; and that Employee disregarded those instructions and warnings, resulting in an accident which caused his injuries.” Id.
March 16, 2009
Court examines implied contracts, quantum meruit, promisory estoppel; good faith not actionable; construction site may not be proper venue
HERMOSA HOLDINGS, INC. f/k/a/THE MONROE PAGE GROUP v. MID-TENNESSEE BONE AND JOINT CLINIC, P.C., AMSURG, THE SURGERY CENTER OF MIDDLE TENNESSEE, et al (Tenn. Ct. App. March 16, 2009)
The Plaintiff, Hermosa Holdings, Inc., instituted the case at bar against several Defendants by asserting various causes of action with reference to a proposed medical office building development. All Defendants responded to the original complaint by filing motions to dismiss pursuant to Tenn.R.Civ.P. 12.02(6) and for improper venue. The Plaintiff subsequently filed an amended complaint. The Defendants responded by filing additional motions to dismiss. By Order entered February 14, 2008, the Chancery Court of Davidson County granted the Defendant’ motions and dismissed the amended complaint with prejudice. We affirm in part, vacate in part and remand for further proceedings.
Opinion can be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/hermosa_031809.pdf
The Plaintiff, Hermosa Holdings, Inc., instituted the case at bar against several Defendants by asserting various causes of action with reference to a proposed medical office building development. All Defendants responded to the original complaint by filing motions to dismiss pursuant to Tenn.R.Civ.P. 12.02(6) and for improper venue. The Plaintiff subsequently filed an amended complaint. The Defendants responded by filing additional motions to dismiss. By Order entered February 14, 2008, the Chancery Court of Davidson County granted the Defendant’ motions and dismissed the amended complaint with prejudice. We affirm in part, vacate in part and remand for further proceedings.
Opinion can be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/hermosa_031809.pdf
Bank payment to joint venture is sufficient payment to either party in venture; Bank not negligent, unjustly enriched or fraudulent in paying just one
WADE LEE PHELPS v. BANK OF AMERICA (Tenn. Ct. App. March 16,2009).
Plaintiff appeals from the grant of summary judgment in a negligence and breach of contract action against bank which had closed loan and delivered loan proceeds to contractor. An agreement between contractor and third party providing financing for construction project stated that contractor and third party would be paid out of loan proceeds. Contractor failed to pay third party in accordance with their agreement. Trial court granted summary judgment to bank, holding that there was a joint venture between contractor and third party and that Bank’s delivery of loan proceeds to contractor was payment to joint venture. Court also held that finding of joint venture pretermitted negligence and breach of contract claims against bank. Finding no error, we affirm the judgment of the trial court.
Opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/phelpsw_031609.pdf
“The proof submitted by Mr. Phelps in his response was insufficient to negate BOA’s contention that Mr. Church and Mr. Phelps were joint venturers and, in fact, buttressed this conclusion and more clearly establishes the necessary elements of common purpose and agreement. Contrary to the contention of Mr. Phelps, the fact that the parties had different responsibilities does not detract from a finding that they had an equal right of control; rather, the action of the parties in dividing the responsibilities of constructing and financing the duplex is evidence that each had an equal right to control the venture, exercised that control for the benefit of the enterprise and agreed to the division of responsibilities. The trial court did not err in finding that Mr. Church and Mr. Phelps were engaged in a joint venture.” Id.
“In support of his contention that BOA owed him a duty and violated that duty, Mr. Phelps relies upon the statements of Mr. Howell, representative of BOA, that he would be paid at closing and that Mr. Howell would have the agreement between Mr. Angus, Mr. Phelps and Mr. Church sent to the closing agent. BOA correctly points out that the Statute of Frauds contained at Tenn. Code Ann. § 29-2-101(b)(1) precludes any claim against BOA relative to the loan to Mr. Angus not based on an instrument signed by BOA. The representations of Mr. Howell, consequently, cannot establish a duty on the part of BOA that would sustain a cause of action for breach of that duty in the absence of a writing. Moreover, any claim of negligence against BOA by Mr. Phelps would fail because of the uncontroverted proof that the cause in fact and proximate cause of Mr. Phelps’ failure to be paid was the action of Mr. Church in not paying him.” Id.
“Both Mr. Phelps and BOA acknowledge that, in order to establish a claim of unjust enrichment, Mr. Phelps must show: (1) a benefit was conferred on BOA; (2) that BOA appreciated the benefit; and (3) it would be unjust for BOA to retain the benefit without providing compensation for it. Of these requirements, the most significant is that the enrichment be unjust. Paschall’s, Inc., 407 S.W.2d at 155. The only benefit BOA received as a result of the transaction between Mr. Church, Mr. Phelps and Mr. Angus was any profit it received as a result of the loan made to Mr. Angus. At the time the loan was made, the duplex had been substantially completed and the property appraised at an amount sufficient to satisfy the BOA’s loan requirements. BOA had no interest in the property and, consequently, had no interest to be enriched prior to construction of the duplex; after construction, the sole interest it had in the property was to secure the indebtedness.” Id.
Plaintiff appeals from the grant of summary judgment in a negligence and breach of contract action against bank which had closed loan and delivered loan proceeds to contractor. An agreement between contractor and third party providing financing for construction project stated that contractor and third party would be paid out of loan proceeds. Contractor failed to pay third party in accordance with their agreement. Trial court granted summary judgment to bank, holding that there was a joint venture between contractor and third party and that Bank’s delivery of loan proceeds to contractor was payment to joint venture. Court also held that finding of joint venture pretermitted negligence and breach of contract claims against bank. Finding no error, we affirm the judgment of the trial court.
Opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/phelpsw_031609.pdf
“The proof submitted by Mr. Phelps in his response was insufficient to negate BOA’s contention that Mr. Church and Mr. Phelps were joint venturers and, in fact, buttressed this conclusion and more clearly establishes the necessary elements of common purpose and agreement. Contrary to the contention of Mr. Phelps, the fact that the parties had different responsibilities does not detract from a finding that they had an equal right of control; rather, the action of the parties in dividing the responsibilities of constructing and financing the duplex is evidence that each had an equal right to control the venture, exercised that control for the benefit of the enterprise and agreed to the division of responsibilities. The trial court did not err in finding that Mr. Church and Mr. Phelps were engaged in a joint venture.” Id.
“In support of his contention that BOA owed him a duty and violated that duty, Mr. Phelps relies upon the statements of Mr. Howell, representative of BOA, that he would be paid at closing and that Mr. Howell would have the agreement between Mr. Angus, Mr. Phelps and Mr. Church sent to the closing agent. BOA correctly points out that the Statute of Frauds contained at Tenn. Code Ann. § 29-2-101(b)(1) precludes any claim against BOA relative to the loan to Mr. Angus not based on an instrument signed by BOA. The representations of Mr. Howell, consequently, cannot establish a duty on the part of BOA that would sustain a cause of action for breach of that duty in the absence of a writing. Moreover, any claim of negligence against BOA by Mr. Phelps would fail because of the uncontroverted proof that the cause in fact and proximate cause of Mr. Phelps’ failure to be paid was the action of Mr. Church in not paying him.” Id.
“Both Mr. Phelps and BOA acknowledge that, in order to establish a claim of unjust enrichment, Mr. Phelps must show: (1) a benefit was conferred on BOA; (2) that BOA appreciated the benefit; and (3) it would be unjust for BOA to retain the benefit without providing compensation for it. Of these requirements, the most significant is that the enrichment be unjust. Paschall’s, Inc., 407 S.W.2d at 155. The only benefit BOA received as a result of the transaction between Mr. Church, Mr. Phelps and Mr. Angus was any profit it received as a result of the loan made to Mr. Angus. At the time the loan was made, the duplex had been substantially completed and the property appraised at an amount sufficient to satisfy the BOA’s loan requirements. BOA had no interest in the property and, consequently, had no interest to be enriched prior to construction of the duplex; after construction, the sole interest it had in the property was to secure the indebtedness.” Id.
March 13, 2009
General Contractor and sub-contractor both found to be in breach of contract; each party assessed one-half of repair costs to damaged roof
TOTAL BUILDING MAINTENANCE, INC., v. J & J CONTRACTORS/RAINES BROTHERS, a Joint Venture, J & JCONTRACTORS, IN., RAINES BROTHERS, INC., ST. PAUL FIRE & MARINE INSURANCE COMPANY, and FIDELITY & DEPOSIT CO. OF MARYLAND (Tenn. Ct. Ann. March 13, 2009).
In this action plaintiff sued for money owed under its subcontract with the defendant contractor. The defendants’ contractor denied liability, raised as affirmative defenses, waiver/estoppel, unclean hands and breach of contract, filed a counter-claim alleging that plaintiff failed to complete its work in a timely and proper manner and permitted the roof to be harmed by others during the construction and generally failed to cooperate. Following an evidentiary hearing, the Trial Judge determined that both parties had breached the contract, that plaintiff was guilty of unclean hands, denied both parties any recovery and dismissed the case. On appeal, we affirm.
Opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/totalbuilding_031309.pdf
“As to the damage to the roof, the testimony showed that everyone involved bore some responsibility, which the Trial Court found. The Trial Court relied upon this fact in basically holding that the most equitable resolution in this situation was to leave the parties where they were, because each party had liability and responsibility for the damage, as mistakes were made by both parties.” Id.
"Defendants argue the Trial Court erred in failing to award them any attorney’s fees in this case, because plaintiff was shown to have breached the contract, to have unclean hands, etc. What the Trial Court found, however, was that both parties breached their agreement, and thus concluded that both parties should be left where they are. It appears that, based upon the evidence in this case, this was the most equitable resolution where it was shown that both parties bore responsibility for the problems leading up to the lawsuit, and both parties were technically in breach. The proof showed that the contractor directed the work on the roof to begin too early in construction, and the contractor also bore responsibility for failing to protect the roof.” Id.
In this action plaintiff sued for money owed under its subcontract with the defendant contractor. The defendants’ contractor denied liability, raised as affirmative defenses, waiver/estoppel, unclean hands and breach of contract, filed a counter-claim alleging that plaintiff failed to complete its work in a timely and proper manner and permitted the roof to be harmed by others during the construction and generally failed to cooperate. Following an evidentiary hearing, the Trial Judge determined that both parties had breached the contract, that plaintiff was guilty of unclean hands, denied both parties any recovery and dismissed the case. On appeal, we affirm.
Opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/totalbuilding_031309.pdf
“As to the damage to the roof, the testimony showed that everyone involved bore some responsibility, which the Trial Court found. The Trial Court relied upon this fact in basically holding that the most equitable resolution in this situation was to leave the parties where they were, because each party had liability and responsibility for the damage, as mistakes were made by both parties.” Id.
"Defendants argue the Trial Court erred in failing to award them any attorney’s fees in this case, because plaintiff was shown to have breached the contract, to have unclean hands, etc. What the Trial Court found, however, was that both parties breached their agreement, and thus concluded that both parties should be left where they are. It appears that, based upon the evidence in this case, this was the most equitable resolution where it was shown that both parties bore responsibility for the problems leading up to the lawsuit, and both parties were technically in breach. The proof showed that the contractor directed the work on the roof to begin too early in construction, and the contractor also bore responsibility for failing to protect the roof.” Id.
February 26, 2009
Plaintiffs should pursue remedies against parties with whom they have privity before contract under implied theory
POWER EQUIPMENT COMPANY v. EUGENE ENGLAND, CLAIBORNE BUILDERS AND DEVELOPER, INC., and WILDER CONSTRUCTION COMPANY, INC., d/b/a LIFETIME HOMES (Tenn. Ct. App. February 26, 2009).
Plaintiff brought this action against defendant Claiborne Builders to recover the rental fees from a contract between plaintiff and Claiborne Builders for earth-moving equipment which Claiborne Builders used to remove soil from Wilder’s property. The Trial Judge entered Judgment against Claiborne Builders on its contract and Wilder Construction under an implied contract. Wilder has appealed. We reverse the Judgment of the Trial Court.
Opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/powerequip_022609.pdf
“In this case, the evidence was conflicting and unsubstantiated as to whether the work performed on Wilder’s land using Power Equipment’s machinery benefitted Wilder, and based upon the Supreme Court’s holding in Paschall and our holding in Bennett, we do not have to decide if a benefit was received by Wilder. It is undisputed that England and Power Equipment had an express, written contract for the lease of the machinery and England owed Power Equipment a balance of $48,402.77 for the use of equipment pursuant to the contract and his personal guarantee. Thus, Power Equipment was required to pursue its remedy against England with whom it had privity of contract before it could pursue an alleged remedy against Wilder under a contract implied in law theory.” Id.
Plaintiff brought this action against defendant Claiborne Builders to recover the rental fees from a contract between plaintiff and Claiborne Builders for earth-moving equipment which Claiborne Builders used to remove soil from Wilder’s property. The Trial Judge entered Judgment against Claiborne Builders on its contract and Wilder Construction under an implied contract. Wilder has appealed. We reverse the Judgment of the Trial Court.
Opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/powerequip_022609.pdf
“In this case, the evidence was conflicting and unsubstantiated as to whether the work performed on Wilder’s land using Power Equipment’s machinery benefitted Wilder, and based upon the Supreme Court’s holding in Paschall and our holding in Bennett, we do not have to decide if a benefit was received by Wilder. It is undisputed that England and Power Equipment had an express, written contract for the lease of the machinery and England owed Power Equipment a balance of $48,402.77 for the use of equipment pursuant to the contract and his personal guarantee. Thus, Power Equipment was required to pursue its remedy against England with whom it had privity of contract before it could pursue an alleged remedy against Wilder under a contract implied in law theory.” Id.
October 24, 2008
Court find that floor trusses are "common elements" in homeowner's association covenants
MICHAEL LLOYD MEIER, ET AL. v. HUNTINGTON RIDGE TOWNHOUSE HOMEOWNERS ASSOCIATION, INC. (Tn. Ct. App. October 24, 2008)
Homeowners association appeals the grant of summary judgment in favor of owners who sued for a declaration that the Association was responsible for the cost of repair of defective floor trusses. The trial court found that found that the defective floor trusses were considered "common elements" under the covenants of the Association. We affirm the decision of the trial court.
Opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2008/meierm_102408.pdf
Homeowners association appeals the grant of summary judgment in favor of owners who sued for a declaration that the Association was responsible for the cost of repair of defective floor trusses. The trial court found that found that the defective floor trusses were considered "common elements" under the covenants of the Association. We affirm the decision of the trial court.
Opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2008/meierm_102408.pdf
October 10, 2008
Court examines County's right to collect overlooked privilege taxes
HOME BUILDERS ASSOCIATION OF MIDDLE TENNESSEE v. WILLIAMSON COUNTY, ET AL. (Tn. Ct. App. October 10, 2008)
Appellants, a group of homebuilders, appeal the trial court's grant of summary judgment in favor of Appellee Williamson County. Homebuilders filed a complaint for declaratory judgment against Williamson County, seeking interpretation of Chapter 118 of the Private Acts of 1987 as amended. Under the alleged authority granted by the Act, Williamson County levied additional adequate facilities taxes on homebuilders based upon its audit of actual square footage built. Builders contend that Williamson County exceeded its authority under the Act by calculating taxes at the time of the issuance of the certificate of occupancy as opposed to the time the building permit was issued. Finding that the Legislature intended to give the County broad authority to levy its tax at the time of the issuance of the building permit or at the time of the issuance of the certificate of occupancy, we affirm.
Opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2008/homebuilders_101008.pdf
Appellants, a group of homebuilders, appeal the trial court's grant of summary judgment in favor of Appellee Williamson County. Homebuilders filed a complaint for declaratory judgment against Williamson County, seeking interpretation of Chapter 118 of the Private Acts of 1987 as amended. Under the alleged authority granted by the Act, Williamson County levied additional adequate facilities taxes on homebuilders based upon its audit of actual square footage built. Builders contend that Williamson County exceeded its authority under the Act by calculating taxes at the time of the issuance of the certificate of occupancy as opposed to the time the building permit was issued. Finding that the Legislature intended to give the County broad authority to levy its tax at the time of the issuance of the building permit or at the time of the issuance of the certificate of occupancy, we affirm.
Opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2008/homebuilders_101008.pdf
County given broad discretion to levy and collect taxes on new home construction
HOME BUILDERS ASSOCIATION OF MIDDLE TENNESSEE v. WILLIAMSON COUNTY, ET AL. (Tenn.Ct.App. October 10, 2008).
Appellants, a group of homebuilders, appeal the trial court's grant of summary judgment in favor of Appellee Williamson County. Homebuilders filed a complaint for declaratory judgment against Williamson County, seeking interpretation of Chapter 118 of the Private Acts of 1987 as amended. Under the alleged authority granted by the Act, Williamson County levied additional adequate facilities taxes on homebuilders based upon its audit of actual square footage built. Builders contend that Williamson County exceeded its authority under the Act by calculating taxes at the time of the issuance of the certificate of occupancy as opposed to the time the building permit was issued. Finding that the Legislature intended to give the County broad authority to levy its tax at the time of the issuance of the building permit or at the time of the issuance of the certificate of occupancy, we affirm.
Opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2008/homebuilders_101008.pdf
"The overarching goal of the tax is also clearly stated in Section 3 of the Act. The purpose of the tax is “to ensure and require that the persons responsible for new development share in the burdens of growth by paying their fair share for the cost of new and expanded public facilities...” (emphasis added). In order to facilitate the goal of the Act, the tax should necessarily be based upon the actual square footage of the improvement." Id.
"From this language, it is clear that the Legislature did not intend to limit the County’s ability to collect this tax. Rather, in order to ensure that the tax is levied upon the full square footage,
Williamson County is given broad discretion to calculate the tax at a time suitable to ascertaining the actual square footage." Id.
Appellants, a group of homebuilders, appeal the trial court's grant of summary judgment in favor of Appellee Williamson County. Homebuilders filed a complaint for declaratory judgment against Williamson County, seeking interpretation of Chapter 118 of the Private Acts of 1987 as amended. Under the alleged authority granted by the Act, Williamson County levied additional adequate facilities taxes on homebuilders based upon its audit of actual square footage built. Builders contend that Williamson County exceeded its authority under the Act by calculating taxes at the time of the issuance of the certificate of occupancy as opposed to the time the building permit was issued. Finding that the Legislature intended to give the County broad authority to levy its tax at the time of the issuance of the building permit or at the time of the issuance of the certificate of occupancy, we affirm.
Opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2008/homebuilders_101008.pdf
"The overarching goal of the tax is also clearly stated in Section 3 of the Act. The purpose of the tax is “to ensure and require that the persons responsible for new development share in the burdens of growth by paying their fair share for the cost of new and expanded public facilities...” (emphasis added). In order to facilitate the goal of the Act, the tax should necessarily be based upon the actual square footage of the improvement." Id.
"From this language, it is clear that the Legislature did not intend to limit the County’s ability to collect this tax. Rather, in order to ensure that the tax is levied upon the full square footage,
Williamson County is given broad discretion to calculate the tax at a time suitable to ascertaining the actual square footage." Id.
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