GARY L. KEY
O.C. RENNER JR. ET AL.
Session February 28, 2017
from the Chancery Court for Greene County No. 20080032
Douglas T. Jenkins, Chancellor
property owners disagree over the terms of an oral agreement
for construction of a private road across their properties.
After the road was completed, one property owner failed to
pay his part of the construction costs or grant a permanent
easement permitting use of the road. The other property owner
filed a complaint for specific performance or, in the
alternative, damages for breach of contract. The defendant
admitted the parties had an agreement but disputed the terms
and raised the defense of the statute of frauds. After a
trial, the court ruled that the defendant was equitably
estopped from asserting the statute of frauds and awarded
specific performance. On appeal, the defendant argues that
the plaintiff is not entitled to enforce the agreement
because either the statute of frauds bars enforcement of the
agreement or the plaintiff was the first party to breach.
After a thorough review of the record, we affirm the judgment
R. App. P. 3 Appeal as of Right Judgment of the Chancery
Court Affirmed as Modified
A. Cowan, Morristown, Tennessee, for the appellants, O.C.
Renner Jr., and the Omer C. Renner Jr. M.D. Living Trust.
William S. Nunnally, Greeneville, Tennessee, for the
appellee, Gary L Key.
Neal McBrayer, J., delivered the opinion of the court, in
which D. Michael Swiney, C.J., and John W. McClarty, J.,
NEAL McBRAYER, JUDGE.
tracts of land relevant to this case lie within a bend of the
Nolichucky River on the border edge of Greene County,
Tennessee, and were originally part of a 200-acre farm owned
by W.C. Scruggs. Over time, portions of the Scruggs farm were
sold to various individuals, including the parties to this
case, Gary Key and Dr. O.C. Renner. In 2005, Dr. Renner
transferred all of his real property to the Omer C. Renner
Jr. M.D. Living Trust (the "Renner
properties in this area are, for the most part, undeveloped.
The nearest county road is Fish Hatchery Road. The Scruggs
family owns property on both sides of the county road.
Gwendolyn Renner, Dr. Renner's sister-in-law, owns
property that lies south of Fish Hatchery Road. The Renner
Trust owns two nonadjacent tracts: one tract south of
Gwendolyn Renner's property and a second one south of Mr.
Key's property. Mr. Key's property is bordered on two
sides by the Renner Trust properties and on two sides by the
Nolichucky River. Although neither the Key property nor the
Renner Trust properties have direct access to the county
road, both men can reach their properties using an old
private road on the Scruggs property by virtue of express
easements not at issue here.
2005, Mr. Key began to explore his options for obtaining
electricity to build a house on his land. He initially
requested permission to attach onto the existing power line
on property across the river, but the property owner refused.
He was also refused permission to install power lines along
his existing easement through the Scruggs property.
Mr. Key approached his neighbor, Dr. Renner, and proposed
that the two men build a new private road, "split"
the cost, and grant each other a "right of way."
Mr. Key offered to arrange for the road construction and
donate the necessary labor to remove trees and brush along
the proposed route. He also wanted to install a power line
along the new road and offered Dr. Renner access to the power
line for the Renner Trust properties. Dr. Renner accepted the
proposal. But their oral agreement was never memorialized in
Renner mistakenly believed that, in addition to the
properties previously described, he also owned a thirty-foot
strip of land running along the edge of his
sister-in-law's property. If this had been the case, he
would own land connecting the upper Renner Trust property to
Fish Hatchery Road. Because he thought the private road he
planned to construct with Mr. Key might require more land,
Dr. Renner attempted to purchase an adjacent section of his
sister-in-law's property before construction began, but
Mrs. Renner refused. Mr. Key also approached Mrs. Renner
about purchasing the land, but when she did not respond, he
did not pursue it further. The men proceeded with their plans
and tried to stay within the area that they believed Dr.
Renner already owned alongside of his sister-in-law's
property. During the course of this litigation,
however, Dr. Renner discovered that he did not own the
thirty-foot strip but instead had an easement through Mrs.
Renner testified that, although she was aware that a road was
being built on her property without her permission, she chose
not to become involved. She never complained about the road
or the power line and, at trial, voiced no objection to their
spring of 2006, Mr. Key hired Four Seasons Ground Service
("Four Seasons") to construct the new road. The
original plan envisioned a simple twelve-foot-wide access
road beginning at Fish Hatchery Road, proceeding along Mrs.
Renner's property line, and continuing down through the
upper Renner Trust property and the Key property to the lower
Renner Trust property. The estimated cost was approximately
Four Seasons began grading the new road, Dr. Renner suggested
a location change for a portion of the road on the upper
Renner Trust property to avoid a steep hill and an abrupt
u-turn, and Mr. Key agreed. Dr. Renner also requested several
more changes to improve future access to the lower Renner
Trust property. Again, Mr. Key did not object. So, the
width of the proposed road was doubled to allow for two-way
traffic. Also the construction quality was improved, and
drainage tiles were added. Unsurprisingly, these changes
increased the cost of the new road, and Mr. Key ultimately
paid Four Seasons over $18, 000.
March and June 2006, Four Seasons completed the basic grading
and drainage for the new road. Subsequently, Mr. Key and Dr.
Renner purchased and spread rock on the road bed and, in an
effort to prevent erosion, sewed grass seed on either side.
Dr. Renner also worked to improve water drainage issues on
his property caused by the new road.
the road was graded, Mr. Key arranged with Greeneville Light
and Power System to install a power line beside the new road.
Mr. Key removed more trees and overhanging branches, as
required by the power company, and paid for the installation.
The power line was above ground until it reached Mr.
Key's property. To extend the line to the lower Renner
Trust property, Dr. Renner was required to pay the power
company's fee and dig a trench for ...