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Lovett v. Cole

Court of Appeals of Tennessee, Knoxville

May 24, 2019

ERIC LOVETT ET AL.
v.
MARSHALL STEVEN COLE, JR. ET AL. AND RALPH SALAS ET AL.
v.
MARSHALL STEVEN COLE, JR.

          Session April 17, 2019

          Appeal from the Chancery Court for Roane County Nos. 2016-81, 2016-133 Frank V. Williams, III, Chancellor

         Eight owners of real property in the Daniels[2] 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.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Reversed; Case Remanded.

          Arthur 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.

          Kevin 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, JJ., joined.

          OPINION

          CHARLES D. SUSANO, JR., JUDGE.

         I.

         A.

         Prior 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.

         Mr. 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, [3] 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 tracts.

         On 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.

         The recorded plat contains a "Certificate of Ownership and General Dedication" executed by Mrs. Daniel, which states:

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.

         On 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.

         The "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.

         Figure 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.

         On 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 reader's convenience.

         Furthermore, 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.

         (Image Omitted)

         Figure 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.

         (Image Omitted)

         On July 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.

         On 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.

         The 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."

         B.

         At 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."[4] In this testimony-driven and factually intensive matter, a thorough recounting of the testimony elicited at trial is necessary.

         Eric 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.

         He 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."

         Mr. 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."

         Mr. 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.

         Mr. 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 Drive" then?
A: There was a sign there that said "Kudzu Drive," but there was no road there anyway.

         In 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.

         Ralph 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.

         Several 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.

         Brandon 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 conditions.

         Christopher 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.

         Mike 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.

         Plaintiff 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.

         Most 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 disputed segment:

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 "Kudzu Lane."

         She 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 subdivision's conception.

         There 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."

         She 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.

         She 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 Kingston ...


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