ERIC LOVETT ET AL.
MARSHALL STEVEN COLE, JR. ET AL. AND RALPH SALAS ET AL.
MARSHALL STEVEN COLE, JR.
Session April 17, 2019
from the Chancery Court for Roane County Nos. 2016-81,
2016-133 Frank V. Williams, III, Chancellor
owners of real property in the Daniels Estates
Subdivision in Roane County, filed suit seeking equitable
relief and money damages from defendants, Marshall Steven
Cole, Jr. and his wife, Sarah Cole, after defendants
allegedly blocked and/or otherwise made impassable a disputed
drive known as "Kudzu Drive." In a later-filed
separate action, two additional owners of property in the
subdivision filed suit seeking equitable relief and money
damages from Mr. Cole individually. Collectively, plaintiffs
claim Kudzu Drive is part of a "joint private permanent
easement" dedicated to the use of all of the tract
owners in the subdivision. Defendants, on the other hand,
claim that the easement consists of a road known as
"Daniel Road," of which Kudzu Drive is not
a part. Kudzu Drive, defendants allege, is an independent
drive situated exclusively on their property. After a bench
trial, the court held that Daniel Road and Kudzu Drive
encompass one subdivision road dedicated to the use of all
subdivision residents. It held that all right, title, and
interest in the disputed drive is vested in the
homeowner's association by virtue of an after-the-fact
quitclaim deed executed to it by the subdivision's
previous owner and developer, Mrs. Melvia Mae
"Peggy" Daniel. The court enjoined defendants from
preventing the homeowner's association from improving or
opening "Kudzu Drive." The court ordered defendants
to remove two gates, a berm, and any other obstructions
preventing ingress and egress along Kudzu Drive. The court
awarded "damages to all of the [p]laintiffs for
[s]lander of [t]itle." The court awarded $14, 133.79 in
attorney's fees and expenses to each set of plaintiffs in
the consolidated matters. The court awarded an additional
$750 to plaintiffs in Eric Lovett et al. v. Marshall
Steven Cole, Jr. et al. for attorney's fees and
expenses incurred in preparing the final order for the trial
court's signature. Defendants appeal. We reverse the
trial court's judgment in which the court decreed that
the property referred to as Kudzu Drive is a part of the
joint private permanent easement dedicated to the use of all
of the tract owners. We hold, instead, that Kudzu Drive is an
independent drive situated exclusively on the defendants'
property. In view of our decision, we also reverse all
monetary awards of the trial court.
R. App. P. 3 Appeal as of Right; Judgment of the Chancery
Court Reversed; Case Remanded.
G. Seymour, Jr. and Robert L. Kahn, Knoxville, Tennessee, for
the appellees, Eric S. Lovett, Michelle A. Lovett, Cathy
Rakestraw, Clair James Rakestraw, Jr., James P. Goodman, Ruth
A. Goodman, Matthew F. Berry, and Deanna Berry.
A. Dean, Knoxville, Tennessee, for the appellees, Ralph Salas
and Gisela Salas.
Marshall Steven Cole, Jr. and Sarah Cole, Kingston,
Tennessee, appellants, Pro Se.
Charles D. Susano, Jr., J., delivered the opinion of the
court, in which John W. McClarty, and Thomas R. Frierson, II,
CHARLES D. SUSANO, JR., JUDGE.
to the creation of Daniels Estates, the entirety of the real
property now comprising the subdivision was owned by Peggy
Daniel and her husband, Calvin Daniel. Following her
husband's death, Mrs. Daniel decided to develop and
divide her real property for purpose of sale. To that end, in
2002, Mrs. Daniel commissioned the assistance of a land
surveyor and engineer, William Leggins.
Leggins surveyed Mrs. Daniel's real property. On a plat
dated April 4, 2002 -and the 2002 timeframe is very
significant (more about this later) - he laid out ten
sellable tracts consisting of at least ten acres each.
Initially, only eight of the subdivision's tracts were
intended for sale,  because, at the time Mr. Leggins created
the plat, Mrs. Daniel retained and continued to reside on the
real property that would later be divided and sold as tracts
9 and 10. None of the initial eight tracts are
"land-locked," because, on the subdivision plat,
Mr. Leggins also laid out a 50-foot wide looped road
intending to serve as an access road to the subdivision's
April 10, 2002, Mrs. Daniel executed a set of restrictions
for the newly developed subdivision. As is relevant to the
present matter, she included in paragraph 15 of the
"Restrictions for Daniels Estates Subdivision,"
(henceforth "Restrictions"), the following
description of an easement serving the tracts:
JOINT PRIVATE PERMANENT EASEMENT; MAINTENANCE THEREOF:
SPECIAL ASSESMENTS [sic]: HEN RIGHTS. All lots in the
subdivision shall be served by a private joint permanent
easement as the same is shown on the recorded plat of said
subdivision. No owner shall allow any vehicle or other
property to block said easement. All individual lot driveways
shall be constructed so as not to cause drainage problems or
other interference with said joint easement...
(Capitalization and underlining in original). The
"recorded plat of [the] subdivision," referenced in
the Restrictions, refers to the plat created by Mr. Leggins
and recorded by Mrs. Daniel in the Office of the Register of
Deeds. The plat does not specifically indicate the location
or parameters of the joint private permanent easement.
recorded plat contains a "Certificate of Ownership and
General Dedication" executed by Mrs. Daniel, which
I MELV1A M. DANIEL, the undersigned owner of the
property shown hereon, hereby adopt as my plan of subdivision
as shown on this Plat. I hereby certify that I am the owner
in fee simple of the property shown hereon. I further certify
that all restrictive covenants which apply to the TRACTS on
this Plat are either shown on the plan or are referred to
thereon, with a copy of the referred to covenants filed with
the Roane County Register of Deeds.
(Capitalization and underlining in original; underlined
portion is penned in all capital letters). The above is
signed by Mrs. Daniel, and dated May 8, 2002.
November 23, 2005, some three years after the documents were
recorded, Mrs. Daniel granted, by the previously noted
quitclaim deed, the joint private permanent easement to the
subdivision's homeowner's association. The deed
(henceforth "Homeowners Easement Deed") describes
the granted easement, as follows:
...without the corporate limits of any municipality, being
known and designated as the joint private permanent easement
within Daniels Estates Subdivision, more commonly known as
Daniel Road, as shown by map of same of record in Plat
Cabinet B, Page 142 in the Register's Office for Roane
County, Tennessee, to which map specific reference is hereby
made for a more particular description.
"map of same of record in Plat Cabinet B, Page
142," referenced in the above Homeowners Easement Deed,
refers to the plat created by Mr. Leggins, which is also the
same plat referenced in the Restrictions. In addition to not
specifying the precise location and parameters of the
easement, the plat also does not denominate what is
referenced in the Homeowners Easement Deed as "Daniel
Road." Interestingly enough, the plat only identifies a
Kudzu Drive in the "vicinity map." Therefore,
central to the dispute in this matter is alleged ambiguity
surrounding what constitutes the subdivision's joint
private permanent easement referenced in the Restrictions and
the subdivision's recorded plat.
1 shows the Daniels Estates Subdivision's recorded plat
created by Mr. Leggins and recorded by Mrs. Daniel at the
Register of Deeds Office. The plat is referenced in both the
Restrictions and in the Homeowners Easement Deed. At trial,
the plat was designated as exhibit A, as seen by the exhibit
sticker placed in the right hand corner of Figure 1.
Figure 1, we have added interlocking "X" marks to
designate the disputed drive (henceforth "Disputed
Drive"). Additionally, penned by this Court, are
designations "A" and "B." These marks are
consistent with those made on exhibit A by witnesses at
trial; the marks designate the approximate locations of two
gates allegedly placed across the disputed drive by
defendants to block access. This Court has penned, in
enlarged font, designations for each tract and U.S. Highway
70, which are original to the recorded plat, for the
added to trial exhibit A by Roane County 911 Director Mike
Hooks are two color-highlighted areas: pink and yellow. The
color of the highlighted portions is frequently referenced by
fact witnesses when testifying regarding the Disputed Drive.
Highlighted in pink, is the segment of subdivision road, seen
in Figure 1, that begins on the western edge along U.S.
Highway 70; the road highlighted in pink proceeds north and
then turns east, continuing between tracts 1 through 8 in a
southerly loop; it then proceeds northwest to complete the
loop at the northern edge of tract 3 (henceforth the
"Loop Access Road"). Defendants contend that the
pink-highlighted segment is the entirety of the
subdivision's access road, which is known as "Daniel
Road." Highlighted in yellow, on trial exhibit A, is the
road designated in Figure 1 by interlocking "X"
marks (Disputed Drive); the vicinity map in Figure 2
denominates this segment of road as "Kudzu Drive."
Kudzu Drive, defendants contend, is an independent drive
situated exclusively on their property. Lastly, the
horizontal marker seen on Figure 1, by the designation
"A," is original to the plat and connotes that
tract 9 includes the acreage on both sides of Kudzu Drive.
2 below is a close-up image of the "vicinity map"
and "general notes" sections featured in the bottom
corner of Figure 1. Significantly, Figure 2 denominates Kudzu
Drive along tract 9, in the subdivision, precisely where
defendants contend it is located as an independent drive. On
the other hand, it does not denominate Daniel Road, which is
specifically referenced in the Homeowners Easement Deed's
reference to the plat.
18, 2016, as a result of the above-outlined dispute
surrounding the location of the subdivision's joint
permanent private easement, eight owners of tracts in the
subdivision filed suit against defendants, Marshall Steven
Cole, Jr. and his wife, Sarah Cole. That suit is styled,
Eric Lovett et al. v. Marshall Steven Cole, Jr. et
al.; the plaintiffs include: Cathy Rakestraw and Clair
James Rakestraw, Jr., owners of tract 2; Eric S. Lovett and
Michelle A. Lovett, owners of tract 3; James P. Goodman and
Ruth A. Goodman, owners of tracts 4 and 5; and Matthew F.
Berry and Deanna Berry, owners of tract 6.
November 9, 2016, two additional owners of real property in
the subdivision, Ralph Salas and Gisela Salas, filed a
separate lawsuit against Mr. Cole individually. Plaintiffs
Mr. and Mrs. Salas purchased "Lot 10 Daniel[s]
Estates," by warranty deed, on January 4, 2007. The
trial court held it was proper to:
consolidate [Ralph Salas et al. v. Marshall Steven Cole,
Jr. and Eric Lovett et al v. Marshall Steven Cole,
Jr. et al.] for trial as to the use and dedication 
and ownership of the road that is in dispute, Kudzu Drive.
And then we will, depending on the outcome of that, we will
then go to a separate hearing on the damages issues that have
been raised in the two lawsuits.
trial court held that bifurcation was necessary, as to the
issue of damages, because "there is a damage issue in
the Salas['] case  that is not common to the Lovett
case." The Salas' case involves "what damages,
if any, [are they] entitled to as a result of [the
Salas'] attempts to sell [their] lot."
trial, several individuals testified regarding what
constitutes the subdivision's easement and regarding the
existence and/or non-existence of a separate and independent
segment of drive known as "Kudzu
Drive." In this testimony-driven and factually
intensive matter, a thorough recounting of the testimony
elicited at trial is necessary.
Lovett, an owner of subdivision tract 3, testified that he
and his wife, Michelle Lovett, purchased their property from
Mrs. Daniel, in 2003. He argued that the easement:
starts at the western entrance from Highway 70 and goes
around... then continues on around, up the hill and back to
the eastern entrance of Highway 70, serving all the tracts.
testified that the 2005 Homeowners Easement Deed granted the
easement, as he describes it, to the subdivision's
homeowner's association and that the association is taxed
for the easement. When Mr. Lovett was asked "[s]o the
homeowners' association was deeded at that time Daniel
Road, correct," he replied "I believe so."
Lovett testified that defendants "unilaterally placed
gates and blocked the [disputed] road." He alleges Mr.
Cole "constructed" one gate, and "took
control" of a second gate that was installed by the
homeowner's association. He indicated by designations
"A" and "B," as seen on Figure 1, the
location of the two gates defendants purportedly installed
and/or otherwise locked. He complained that the tract owners
do not have access to the gates and that Mr. Cole
"intimidate[s] people from accessing that area or being
anywhere near that area."
Lovett also testified that Mr. Cole placed an "earthen
berm approximately four feet tall that blocks any other
access." He further alleged that Mr. Cole "graded
the road inside the gate" making the Disputed Drive
"somewhat impassable." He has demanded that Mr.
Cole remove the gates and other alleged impediments, but Mr.
Cole has refused to comply.
Lovett testified that there used to be a street sign at the
intersection of the Disputed Drive and U.S. Highway 70
denominating it "Daniel Road." He alleges Mr. Cole
unilaterally removed the sign. On cross, Mr. Lovett recounted
that, when he bought his property, in 2003, there was a sign
designating the Disputed Drive as "Kudzu Drive:"
Q: .. .is it your testimony that the [U.S. Highway 70] end of
Kudzu Drive, that there was not a sign there that said
"Kudzu Drive" when you bought your property?
A: That is not my testimony.
Q; Okay. There was a sign there that said "Kudzu
A: There was a sign there that said "Kudzu Drive,"
but there was no road there anyway.
2003, when he purchased his tract, he testified that Kudzu
Drive was an unimproved driveway. The plaintiffs in Eric
Lovett et al. v. Marshall Steven Cole, Jr. et al. rested
after Mr. Lovett's testimony.
Salas, owner of subdivision tract 10, testified that his
tract borders defendants' tract to the west. He and his
wife purchased their property in 2007. His address is listed
as "109 Daniel Road" on the Lot/Land Purchase and
Sale Agreement, as "109 Daniel Road, Lot 10," on
the property listing, and is listed as "Lot 10 Daniel
Estates" on their deed. He alleged that a "Daniel
Road" sign predated his purchase of tract 10. He
testified that it is impossible to access his tract from the
portion abutting U.S. Highway 70 because of the topographical
slant of his tract.
years after Mr. Salas purchased tract 10, plaintiff Cathy
Rakestraw, a friend of Mr. and Mrs. Salas and one of the
owners of tract 2, informed Mr. Salas of a new neighbor
"that had just moved in  that might be interested in
purchasing [his] lot." She gave him the new
neighbor's number; the new neighbor was Mr. Cole. Mr.
Salas corresponded with Mr. Cole "by text and eventually
an email," attempting to sell tract 10 to the Coles. Mr.
Cole did not purchase the property.
Hutchison, a realtor, testified regarding plaintiffs'
claim for an injunction and the Salas' claim for damages
against defendants for interference with their ability to
sell their property. Mr. Hutchison testified that he had
trouble locating the boundary lines for tract 10; he
initially put the "for sale" sign on the Coles'
property by mistake. Mr. Cole later encountered Mr. Hutchison
and informed him of his mistake. It ultimately took him
several attempts to successfully locate the property. On one
occasion, when Mr. Hutchison went to show the property, he
testified that Mr. Cole made him feel threatened. He
specifically noted that Mr. Cole mentioned the fact that
there were copperheads in the area and that the property does
not "lie the right way." He felt Mr. Cole made
these comments in a "demeaning" way. Mr. Hutchison
ultimately canceled the listing, stating that he felt it
would be difficult to sell the property under these
Perry was referred to the Salas' tract as an alleged
potential buyer. He testified that his coworker, plaintiff
Matthew Berry, helped him, locate tract 10. When he viewed
the property, he accessed it off of U.S. Highway 70. Mr.
Perry testified that the Salas' entire property
"goes down a hill;" it has a gradual slope of
approximately ten feet and it gets "steeper and
steeper" as you approach the center. He recalled an
occasion where he went to view the property. He testified
that, when he left, Mr. Cole followed him in his truck out of
the subdivision and reported him to the police for
trespassing. The police did not arrive until Mr. Perry was
already home; he was not cited.
Hooks, executive director for Roane County 911, testified
regarding the location of Daniel Road. He stated that the
strip of Disputed Drive, designated with interlocking
"X" marks in Figure 1, is not a part of what Roane
County 911 knows as Daniel Road. Daniel Road consists only of
the Loop Access Road, which he highlighted in pink. There is
no name designation for the Disputed Drive known as Kudzu
Drive, which he highlighted in yellow. He testified that the
Salas' tract 10 is on Kingston Highway; it has a
reference point of 4071. He acknowledged that their
designations are solely for emergency response purposes and
not for purpose of title.
Michelle Lovett then testified that she and her husband, Eric
Lovett, purchased tract 3, around 2002. At trial, she was
shown a photograph that pictured a street sign denominating
the disputed drive as "Kudzu Drive;" she agreed
that the sign was present when she moved into the
subdivision. Mrs. Lovett also testified that gate B was
present at the Kudzu Drive sign in 2002, which is when she
alleges she moved into her tract, and that the gate therefore
pre-existed the Coles' residency.
notably, Mrs. Daniel testified. As noted at the beginning of
this opinion, she was the previous owner of all of the tracts
that now comprise the Daniels Estates Subdivision. She
developed the subdivision. She testified that the Disputed
Drive is called "Kudzu Road." She said it is a
driveway to tract 9, which used to be her residential
property. She indicated on a map of the subdivision that the
A: .. .never was called Daniel Road.
Q: What was it called?
A: It wasn't called anything until I named it Kudzu.
Q: Why did you name it Kudzu Road?
A: 'Cause of all the Kudzu. I made a wooded sign and put
[it] up at the top of the hill because people couldn't
find where I lived...
Q: When did you do that?
A: Back in ninety - about '92.
Q: .. .and then the County come by and put up a sign one day.
When I come in from school, the sign was up there that said
clarified that the Homeowners Easement Deed only granted the
homeowners association the Loop Access Road. She testified
that the Loop Access Road was fully accessible at the
were originally eight tracts in the Daniel Estates
Subdivision, i.e. tracts 1 through 8. Mrs. Daniel
originally intended to keep what are now tract 9 and tract
10. She testified that tract 9 and tract 10 were "not
part of the subdivision." At the subdivision's
conception, Mrs. Daniel personally resided on tract 9, which
is now owned by the defendant Coles. She testified that tract
10 was beside it "on the highway."
testified that there were two gates pre-dating the Coles'
purchase of tract 9. The gates were located on or about where
the ones at issue are presently located -designated A and B
on Figure 1. She recalled that the gates were installed
around 1950 -1955 for cattle retention purposes.
testified that the Salas' tract 10 is "on Highway -
that's on Kingston Highway." Mrs. Daniel was asked
whether she ever referred to the Salas' tract 10 as
"109 Daniel Road." She replied, "No...[w]hy
would it have 109? There's not a house on it." She
reiterated that she has never referred to it as being on
Daniel Road, she testified that "I know it's