O. HOGAN HARRISON, ET AL. v. AVALON PROPERTIES, LLC, ET AL. (Tenn.Ct.App. August 27, 2007).
Hogan Harrison and Sally D. Harrison ("Plaintiffs") sued Avalon Properties, LLC ("Avalon Properties"), Avalon Golf Properties, LLC ("Avalon Golf"), and Usonia Homes, Inc. ("Usonia") for breach of contract and negligent misrepresentation, among other things, in connection with the construction of Plaintiffs' house. Plaintiffs were granted a default judgment against Usonia for its failure to answer the complaint. After a bench trial, the Trial Court entered an order of involuntary dismissal pursuant to Tenn. R. Civ. P. 41.02 as to Avalon Properties. The Trial Court also entered a Final Judgment incorporating by reference the Trial Court's Opinion finding and holding, inter alia, that Avalon Golf made representations to Plaintiffs through its agent that Usonia was qualified to build the house and implicitly vouched that Usonia had the ability to fund the work; that the representations were made with the intent to induce Plaintiffs to rely on them; that Plaintiffs did rely on the representations to their detriment and were damaged; and that Avalon Golf was negligent in the selection of Usonia as the exclusive builder. The Trial Court awarded Plaintiffs a judgment of $164,065.87. Avalon Golf appeals to this Court. We reverse that portion of the Trial Court's judgment holding Avalon Golf liable for negligent misrepresentation and negligent selection, and affirm as to the other defendants.
Opinion can be found at TBA website:
http://www.tba2.org/tba_files/TCA/2007/harrisono_082707.pdf
August 28, 2007
August 27, 2007
Once the Department of Transportation completes a project, claims against it relating to the project may be moot.
IN RE: ORDER TO ENCAPSULATE NATIVE AMERICAN INDIAN GRAVESITES IN CONCRETE AND PAVE OVER WITH ASPHALT (Tenn.Ct.App. August 24, 2007).
During construction involving Hillsboro Road in Davidson County, the Department of Transportation discovered three Native American Indian graves. The Department of Transportation eventually reinterred the graves and encapsulated the graves in concrete. The Department of Transportation later determined, after the fact, that simply encapsulating the graves in concrete did not comply with relevant statutory law. A first lawsuit was filed challenging the Department's alleged policy of encapsulating graves. While the first lawsuit was pending, the construction project was completed. On appeal in the first lawsuit, this Court determined that the plaintiffs' claims were moot and none of the applicable exceptions to the mootness doctrine applied. The present case involves the same claims as the first lawsuit, with the only exception being that this lawsuit initially was filed pursuant to the Uniform Administrative Procedures Act, Tenn. Code Ann. section 4-5-101, et seq. The Trial Court dismissed this lawsuit after finding that the same claims raised by the plaintiffs in this case were held to be moot in the first appeal. We affirm.
Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2007/encapsulate_082407.pdf
During construction involving Hillsboro Road in Davidson County, the Department of Transportation discovered three Native American Indian graves. The Department of Transportation eventually reinterred the graves and encapsulated the graves in concrete. The Department of Transportation later determined, after the fact, that simply encapsulating the graves in concrete did not comply with relevant statutory law. A first lawsuit was filed challenging the Department's alleged policy of encapsulating graves. While the first lawsuit was pending, the construction project was completed. On appeal in the first lawsuit, this Court determined that the plaintiffs' claims were moot and none of the applicable exceptions to the mootness doctrine applied. The present case involves the same claims as the first lawsuit, with the only exception being that this lawsuit initially was filed pursuant to the Uniform Administrative Procedures Act, Tenn. Code Ann. section 4-5-101, et seq. The Trial Court dismissed this lawsuit after finding that the same claims raised by the plaintiffs in this case were held to be moot in the first appeal. We affirm.
Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2007/encapsulate_082407.pdf
Lack of use of an easement obtained by adverse possession does not revoke the easement
FRANK BAILEY and wife, ALMA SUE BAILEY; EARL BAILEY; CALVIN CHESNEY; and RALPH BAILEY, v. CARROLL S. GWYN and wife, ROSE F. GWYN (Tenn.Ct.App. August 24, 2007).
In this action to have an easement established across defendants' property, the Trial Court held there was clear and convincing evidence that plaintiffs were entitled to an easement by adverse use. We affirm.
Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2007/baileyf_082407.pdf
In this action to have an easement established across defendants' property, the Trial Court held there was clear and convincing evidence that plaintiffs were entitled to an easement by adverse use. We affirm.
Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2007/baileyf_082407.pdf
August 23, 2007
Attorney fees available for plaintiffs suing for breach of covenant against encumbrances
CHARLES AND ANN HALFORD v. HAROLD R. GUNN (Tenn.Ct.App. Aug. 22, 2007)
The plaintiff-buyers entered into an installment sales contract in 1991 in which they agreed to purchase real property owned by the defendant-seller. The contract provided that upon the plaintiffs' payment of the purchase price, the defendant would provide a deed conveying the property to them free of encumbrances. In 2002, a general sessions judgment was entered against the defendant in an unrelated case, and the defendant appealed that judgment to the circuit court, where that case currently remains pending. The judgment was filed as a lien on the real property in 2002.
In late 2004 or early 2005, the plaintiffs had made all necessary payments on the real property, and the defendant conveyed the property to them by warranty deed. While attempting to sell the real property in 2005, the plaintiffs discovered the existence of the 2002 judgment lien on the property, and they placed funds in escrow in order to satisfy their intended purchaser that the lien would be removed or paid. The plaintiffs filed a warrant in general sessions court against the defendant, alleging that he was liable for breach of the covenant against encumbrances contained in the warranty deed. The general sessions court entered judgment in favor of the plaintiffs, and the defendant appealed to the circuit court. The plaintiffs filed a motion for summary judgment and sought an award of reasonable attorney's fees. The circuit court granted the motion for summary judgment, but denied the plaintiffs' request for attorney's fees. On appeal, we affirm in part, reverse in part, and remand for a determination of reasonable attorney's fees incurred below and on appeal.
Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2007/halfordc_082207.pdf
The plaintiff-buyers entered into an installment sales contract in 1991 in which they agreed to purchase real property owned by the defendant-seller. The contract provided that upon the plaintiffs' payment of the purchase price, the defendant would provide a deed conveying the property to them free of encumbrances. In 2002, a general sessions judgment was entered against the defendant in an unrelated case, and the defendant appealed that judgment to the circuit court, where that case currently remains pending. The judgment was filed as a lien on the real property in 2002.
In late 2004 or early 2005, the plaintiffs had made all necessary payments on the real property, and the defendant conveyed the property to them by warranty deed. While attempting to sell the real property in 2005, the plaintiffs discovered the existence of the 2002 judgment lien on the property, and they placed funds in escrow in order to satisfy their intended purchaser that the lien would be removed or paid. The plaintiffs filed a warrant in general sessions court against the defendant, alleging that he was liable for breach of the covenant against encumbrances contained in the warranty deed. The general sessions court entered judgment in favor of the plaintiffs, and the defendant appealed to the circuit court. The plaintiffs filed a motion for summary judgment and sought an award of reasonable attorney's fees. The circuit court granted the motion for summary judgment, but denied the plaintiffs' request for attorney's fees. On appeal, we affirm in part, reverse in part, and remand for a determination of reasonable attorney's fees incurred below and on appeal.
Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2007/halfordc_082207.pdf
August 17, 2007
Boundary dispute over easements
CRAIG GREEN v. MORGAN HINES (Tenn.Ct.App. May 29, 2007)
Appellant and cross-plaintiff appeals the trial court's order which, among other things, granted an easement across the appellant's property. The record contains no statement of the evidence or transcript of the proceedings; therefore, the trial court's findings of fact are presumed to be correct. We affirm.
Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2007/greenc_081607.pdf
Appellant and cross-plaintiff appeals the trial court's order which, among other things, granted an easement across the appellant's property. The record contains no statement of the evidence or transcript of the proceedings; therefore, the trial court's findings of fact are presumed to be correct. We affirm.
Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2007/greenc_081607.pdf
July 18, 2007
Developers: Stay away from the gas line
One lesson that shouldn't need further instruction is to not interfere with gas lines while developing property. In MEMPHIS LIGHT, GAS & WATER DIVISION v. TOMMY CARL STARKEY, the developer graded property with a gas line running through it. Dirt above and around the line was removed such that only a "teepee" of dirt remained along the line. The easement was 75 feet wide, so the developer worked extensively in the easement. The utility company discovered the work, nearly had the developer arrested, and re-installed over 20,000 yards of dirt around the gas line. The Court noted that the duties owed by the utility and the developer to maintain a safe gas line reigned supreme. As such, the utility company was given compensatory damages for the dirt and $11,000 in punitives.
July 02, 2007
TCPA claim against homebuilder
Homeowners of newly constructed houses may be proactive with their contracts and their litigation. In WAYNE'S CONSTRUCTION, INC. v. WILLIAM JONES, ET AL., the Tennessee Court of Appeals upheld treble damages ($417,750) plus attorney fees against the homebuilder, who appealed based on the proof of damages. In what was certainly a battle of the experts, the Court held that the homeowners "were [not] required to adopt a wait and see attitude to see if the house was going to fall down before being able to come to court with proof that was sufficiently definite to support an award of damages." The contract specified a three-month timeframe, and despite repeated assurances, the homeowners dismissed the builder after five months. At the time of termination, major aspects of the home had not been constructed, including the gutters, painting, trim, driveway, and site grading. At that point, the homeowners had already paid the builders the full $330,000 specified in their construction agreement. Further, the house was replete with structural problems, mainly stemming from the failure to properly connect the foundation girders to shift the load to the piers. Thus, the Court has come to the aid of individuals contracting for new home construction, allowing them to fire homebuilders who fail to live up to their contractual obligations, mitigate damages, and collect damages in court.
Interestingly enough, the builder originally filed the suit and demanded payment for services to date. After reviewing the opinion, one wonders why the builder would initiate the litigation. Was it a preemptive strike? Did the court overstate the nature of the proof against the builder? Did the builder fail to inform its attorney of all the relevant facts?
Additionally, the opinion noted that the only issue on appeal was proof of damages. It's difficult to tell from this opinion, but one has to wonder why the TCPA claim itself was not at issue.
Interestingly enough, the builder originally filed the suit and demanded payment for services to date. After reviewing the opinion, one wonders why the builder would initiate the litigation. Was it a preemptive strike? Did the court overstate the nature of the proof against the builder? Did the builder fail to inform its attorney of all the relevant facts?
Additionally, the opinion noted that the only issue on appeal was proof of damages. It's difficult to tell from this opinion, but one has to wonder why the TCPA claim itself was not at issue.
June 28, 2007
It's not a contract until the "By:" line is executed
An unexecuted written agreement can be binding, but only if there is mutual assent between the parties to the agreement. In TERRY PAUL, ET AL. v. MERIT CONSTRUCTION, INC., the Tennessee Court of Appeals held that a defendant general contractor could not enforce an arbitration provision contained in a contract that was partially filled out by the plaintiffs. The plaintiffs were were masonry subcontractors who had been working on the subject construction site for months, before the GC presented them with the standard form of Agreement between Contractor and Sub-Contractor. The facts discussed by the court indicate that there was evidence of an unresolved disagreement about the terms of the Agreement between the parties. One of the plaintiffs wrote their name in the "Subcontractor: ______" line of the acknowledgement in the Agreement, but did not execute the "By: ______" line. According to the Court, this did not constitute execution or mutual assent.
Perhaps the holding would have been different had the GC presented the Agreement before the plaintiffs began their work. That way, the GC could argue that the act of beginning work would manifest assent to the terms of the agreement. In this case, the Agreement was presented months after the start date, and therefore the act of continuing work merely manifested the intent to continue under the prior oral agreement.
Perhaps the holding would have been different had the GC presented the Agreement before the plaintiffs began their work. That way, the GC could argue that the act of beginning work would manifest assent to the terms of the agreement. In this case, the Agreement was presented months after the start date, and therefore the act of continuing work merely manifested the intent to continue under the prior oral agreement.
Sellers must search and investigate the chain of title before purchasing land
This point is obvious, but in AARON BURKHART v. WELLS FARGO BANK WEST, N.A., ET AL., the Tennessee Court of Appeals held that the duty of a purchaser of land to discover and investigate matters of public record (in this case, a deed of trust at the courthouse) trumps the duty of the seller to disclose material facts affecting the property’s value known to the seller but not reasonably known to or discoverable by the buyer. Further, the Court held that failure to disclose said matters of public record does not constitute an unfair or deceptive practice under th Tennessee Consumer Protection Act, § 47-18-101 et seq.
June 14, 2007
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