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Isaacs v. Fitzpatrick

Court of Appeals of Tennessee, Nashville

August 8, 2019

PHILLIP ISAACS, JR., ET AL.
v.
BRENNON FITZPATRICK, ET AL.

          Session: May 8, 2019

          Appeal from the Chancery Court for Perry County No. 5139 Deanna B. Johnson, Judge

         This appeal involves a dispute between neighboring landowners over the use of a driveway that crosses the land of a third neighbor. Two of these landowners were previously involved in a separate lawsuit that resulted in an agreed declaratory judgment establishing an easement for one landowner at the location of the driveway. In the case at bar, the trial court found that the prior declaratory judgment is not binding on the neighboring landowners who were not parties to that earlier proceeding. After a two-day bench trial and on-site view of the premises, the trial court found that these neighbors had established an easement implied from prior use, and alternatively, an easement implied by necessity, enabling them to use the driveway as well. The other landowner, who was granted an easement by the earlier agreed order, has appealed, insisting that he has the exclusive right to use the driveway. For the following reasons, we affirm the decision of the chancery court.

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

          Sean R. Aiello, Franklin, Tennessee, for the appellant, Brennon Fitzpatrick.

          Douglas Thompson Bates, III, Centerville, Tennessee, for the appellees, Phillip Isaacs and Vanessa Isaacs.

          Carma Dennis McGee, J., delivered the opinion of the court, in which J. Steven Stafford, P.J., W.S., and Kenny W. Armstrong, J., joined.

          OPINION

          CARMA DENNIS McGEE, JUDGE

         I. Facts & Procedural History

         This case involves parcels of property that border the Buffalo River in Perry County, Tennessee. All of these parcels were originally part of a large farm owned by the Cunningham family since at least the 1930's. The Cunningham family used an old farm road to drive their cattle and move farm equipment through the farm. At some point, this old farm road became commonly known as "Cunningham Lane."

         Betty Stofel grew up on the farm and eventually acquired much of the land from her mother, Mable Cunningham. In 1999, Ms. Stofel subdivided the farm and sold one of the vacant lots along the Buffalo River to Mr. and Mrs. Ronald Smith. The Smiths' property had some road frontage along a gravel road, but the portion of their property abutting the road was very steep, and there was no driveway running from the gravel road directly onto their property. Instead, an old roadbed extended from the Smiths' property back across land retained by Ms. Stofel, where it connected to the same gravel road. According to Mr. Smith, this old roadbed had chert rock on it and appeared to have existed for a long time.[1] Before the sale of the property was completed, Mr. Smith was told by Ms. Stofel that this old roadway connecting their property to the gravel road would be their driveway. Notably, Ms. Stofel told Mr. Smith, "Where the chert is, is the driveway, the easement." The Smiths' deed from Ms. Stofel expressly provided that the property would be "accessed by a 30 foot in width right-of-way from a 50 foot in width right-of-way north of Cunningham Ridge Road," and Mr. Smith believed that this language encompassed his driveway easement. Years later, at least by the time of trial, the parties discovered that the language in the deed actually provided for a means of accessing the river, by going farther down the main gravel road and through the back part of the property and ending at the river. However, at the time of the conveyance, the Smiths believed that the language in the deed provided for an easement at the driveway.

         Mr. and Mrs. Smith bought a cabin and placed it on the property such that the driveway leads directly to it. The cabin was not the Smiths' primary residence, but they traveled to the cabin every weekend and sometimes for week-long vacations. During this time, Ms. Stofel paid for maintenance of the main gravel road but not maintenance of the separate driveway to the Smiths' cabin. Ms. Stofel repeatedly told the Smiths that it was their driveway and that they were responsible for the cost of maintaining it. The Smiths hired someone to bring in a dump truck with seventeen tons of stone to improve the driveway and adjacent ditch. Every spring, the Smiths had to add some additional gravel due to the rains washing the driveway and forming ruts.

         The property adjacent to the Smiths' property was apparently a vacant lot with the exception of a fence running along the property line. There was an old gate at the corner of the property line fence near the driveway that the Smiths used, but the gate did not touch the driveway. Grass separated the driveway and the old gate. Despite the existence of the gate, from 1999 to 2007, no one used the driveway except for the Smiths.

         In 2007, the Smiths sold the property to Mr. and Mrs. Isaacs. Mr. Smith admittedly told Mr. and Mrs. Isaacs that the driveway "was their drive." Like the Smiths, Mr. and Mrs. Isaacs used the cabin as a weekend home and traveled to it on a weekly basis. Mrs. Isaacs is an avid kayaker and frequently pulls a kayak trailer to the cabin. Mr. and Mrs. Isaacs added a "drop-down" drive on the very steep slope of their property abutting the gravel road such that the drop-down drive runs from the gravel road and connects to their main driveway "to make a loop." This enables them to pull their kayak trailer down the drop-down drive onto the main driveway so that they can exit out their main driveway when they leave. Without the loop, there is not enough space on the property to pull in the driveway and turn around with the trailer. However, according to Ms. Isaacs, the drop-down drive is simply too steep to use for exiting the property unless one has a four-wheel drive vehicle. Instead, Mr. and Mrs. Isaacs use the main driveway to exit the property and get back to the gravel road.

         Mr. and Mrs. Isaacs used and maintained the driveway regularly and without incident from 2007 until 2015. In 2015, Brennon Fitzpatrick bought the adjacent three-acre lot next to Mr. and Mrs. Isaacs, where the fence and the old gate were located. Mr. Fitzpatrick had purchased a two-acre lot past the adjacent three-acre lot several years earlier, and he had a cabin on the two-acre lot. Mr. Fitzpatrick wanted the contiguous three-acre lot next to the property owned by Mr. and Mrs. Isaacs to further complement his existing lot. Mr. Fitzpatrick was aware of the fact that Mr. and Mrs. Isaacs regularly used the driveway across Ms. Stofel's land to access their cabin. However, Mr. Fitzpatrick believed that he had a right to utilize the same driveway to access the adjacent three-acre lot at the location of the old gate. The deed to his property, which was originally sold by the Cunninghams to his predecessors in title in 1974, included a "perpetual right-of-way easement over an existing road known as Cunningham Lane for the purpose of ingress and egress to the property herein conveyed."

         After he purchased the adjacent lot, Mr. Fitzpatrick took a bulldozer onto the driveway, which led to a heated exchange with Ms. Stofel and Mr. and Mrs. Isaacs. Ms. Stofel told Mr. Fitzpatrick that the driveway belonged to her and that she was not going to allow him to use it. Mr. and Mrs. Isaacs also told Mr. Fitzpatrick that they had always used the driveway. Thereafter, Mr. and Mrs. Isaacs continued to use the driveway without incident for several months.

         On June 8, 2016, Mr. Fitzpatrick filed suit against Ms. Stofel in the chancery court of Perry County. The complaint recited that Mr. Fitzpatrick's predecessor in title was granted an easement over an existing road known as Cunningham Lane for the purpose of ingress and egress to the property. Mr. Fitzpatrick acknowledged his belief that Cunningham Lane, in its present form, does not touch the tract he now owns, but Mr. Fitzpatrick alleged that Ms. Stofel had "created a driveway off of Cunningham Lane which ends at an old wooden gate on Fitzpatrick's property and appears to have been designed to allow access onto Fitzpatrick's property through this gate." The complaint asked the court to "declare Fitzpatrick's right to access his property over Cunningham Lane and/or the driveway." Mr. and Mrs. Isaacs were not named as defendants or mentioned in the complaint.

         On July 11, 2016, Mr. Fitzpatrick filed a motion for default judgment, asserting that Ms. Stofel had failed to file an answer to the June 8 complaint. The hearing on the motion for default judgment was set for August 8, 2016. On that date, however, the trial court entered an agreed order with the following relevant provisions:

         ORDER TO ESTABLISH A PERPETUAL RIGHT-OF-WAY EASEMENT

It appears to the Court as evidenced by the signatures of Counsel for the parties that an agreement has been reached to establish an exclusive perpetual right-of-way easement for ingress and egress to benefit the Plaintiff, and all persons who may subsequently take title to Plaintiff's tract of real property described herein. The perpetual right-of-way easement shall be exclusive to Plaintiff, his heirs, assigns and successors.
. . . .
There is an existing driveway approximately twenty five (25) feet in width and one hundred fifty (150) feet in length which runs off of Cunningham Lane across Stofel's property to the southeastern boundary of Plaintiff's property. Said driveway is shown on the attached Exhibit A.
By this Order, Betty Stofel hereby conveys to Brennon Fitzpatrick and his heirs and assigns, an exclusive perpetual right-of-way easement over and along the existing driveway being some twenty five (25) feet in width and one hundred fifty (150) feet in length which leaves Cunningham Lane and extends to the southeastern boundary of Plaintiff[']s property. . . .

         The following drawing was incorporated by reference, depicting the blackened "Easement Area" with an arrow leading to it:

         (Image Omitted)

         On the same day the agreed order was entered, Mr. Fitzpatrick went to the cabin owned by Mr. and Mrs. Isaacs and told them that he had obtained "exclusive" rights to the driveway and that they would only be permitted to use it with his permission. Mr. and Mrs. Isaacs contacted Ms. Stofel, and she informed them that she did not intend to grant Mr. Fitzpatrick exclusive rights to the driveway but meant for them to share access to it.

         On September 2, 2016, Ms. Stofel filed a motion to set aside or alter or amend the August 8 order. Among other things, Ms. Stofel asserted that the language of the order did not accurately reflect her understanding of the easement. According to her attorney, Ms. Stofel intended this particular easement grant to be exclusive to Mr. Fitzpatrick, his heirs, assigns, and successors, but she did not intend for Mr. and Mrs. Isaacs to be denied access to their property by way of the same driveway.

         On September 7, 2016, Mr. and Mrs. Isaacs filed a motion to intervene in the declaratory judgment action between Mr. Fitzpatrick and Ms. Stofel. Mr. and Mrs. Isaacs asserted that their property was accessed by the same right-of-way described in Mr. Fitzpatrick's complaint and the agreed order, and they sought to intervene in order to file a counter-action for a declaration of their own rights. Mr. and Mrs. Isaacs filed a "Proposed Intervening Answer, Counter-complaint, and Cross-complaint." Mr. Fitzpatrick opposed the motion to alter or amend filed by Ms. Stofel and also the motion to intervene filed by Mr. and Mrs. Isaacs.

         The chancery court held a hearing on both motions on October 18, 2016. At the conclusion of the hearing, the trial judge announced that he found no basis for granting Ms. Stofel's motion to alter or amend pursuant to Tennessee Rule of Civil Procedure 59, "[a]nd based upon that denial there is no proceeding at this time that will allow the intervention of the Isaacs." The trial court entered a written order simply stating that both the motion to alter or amend and the motion to intervene were "without merit and must be denied."

         On January 26, 2017, Mr. and Mrs. Isaacs instituted this proceeding in the chancery court of Perry County, naming both Mr. Fitzpatrick and Ms. Stofel as defendants. Mr. and Mrs. Isaacs argued that the agreed order in the declaratory judgment action between Mr. Fitzpatrick and Ms. Stofel could not prejudice the rights of Mr. and Mrs. Isaacs pursuant to Tennessee Code Annotated section 29-14-107(a) of the Tennessee Declaratory Judgment Act, which provides:

When declaratory relief is sought, all persons shall be made parties who have or claim any interest which would be affected by the declaration, and no declaration shall prejudice the rights of persons not parties to the proceedings.

         Mr. and Mrs. Isaacs asserted that they were entitled to an easement by implication. In summary, Mr. and Mrs. Isaacs asked the court to hold that their rights were not prejudiced by the proceeding to which they were not a party, and they further asked the court to declare that Mr. and Mrs. Isaacs have an implied easement along the driveway. Ms. Stofel filed an answer admitting that her interest was "as owner of the servient tenement with the lawful obligation attached thereto."[2]

         Mr. Fitzpatrick moved to dismiss the complaint on the basis that the trial court could not grant any relief to Mr. and Mrs. Isaacs pertaining to the agreed order or reexamine that ruling. Because the agreed order stated that Mr. Fitzpatrick was granted an "exclusive" easement, he argued that Mr. and Mrs. Isaacs could not be granted an easement to use the same driveway. According to Mr. Fitzpatrick, the complaint should be dismissed as an impermissible collateral attack on a valid final judgment.

         The trial court held a two-day bench trial on April 17 and 18, 2018. The trial court took under advisement the motion to dismiss filed by Mr. Fitzpatrick. The court heard testimony from Mrs. Isaacs, Mr. Smith (who owned the property before Mr. and Mrs. Isaacs), Mr. Fitzpatrick, and Ms. Stofel.

         Ms. Stofel was 87 years old at the time of trial. She testified about growing up on the Cunningham farm. Ms. Stofel testified that when the Smiths purchased their vacant lot from her in 1999, the old roadbed they saw leading from the Smiths' property across her property to the main gravel road "was the west portion of the old road that went through our farm." Ms. Stofel explained that this was "the farm road" her father had used to move cattle and farm machinery. She said this was "the only drive into our farm." As such, Ms. Stofel explained that the driveway used by the Smiths "didn't have to be built" when they bought the property because "[t]he road was already there." According to Ms. Stofel, the Smiths simply improved the existing roadbed and maintained it. Ms. Stofel confirmed that the Smiths used and improved the driveway with her permission, but she also acknowledged that "[i]t was not written in the deed as an easement."

         Mr. Smith testified that when he purchased the property, the existing roadbed looked as if it had been in existence a long time. He testified that there was already chert rock on the roadbed when he bought the property. According to Mr. Smith, the roadbed went onto his property and looked like it was his driveway. Mr. Smith said Ms. Stofel pointed out the chert rock and told him this was his easement. Mr. Smith believed that he had an enforceable easement to use the driveway and would not have purchased the property if he thought that he only had mere permission that could be revoked. During the eight years the Smiths owned the property, no one used the driveway except Mr. Smith and his wife. When the Smiths sold the property to Mr. and Mrs. Isaacs, Mr. Smith admittedly told them that the driveway "was their drive."

         Mr. Smith was familiar with the river access route described by the express easement in the deed. At first, he explained, the location of that easement traveled farther down the gravel road bordering the steep side of the property, then it left the gravel road and eventually ended at the river. Mr. Smith said that "[y]ou could go on down on it if you had a four-wheel drive pickup," but, he added, there was a gate along the route to keep the Stofels' cows contained. He explained that no one ever used that route and that it was "grown up." As previously noted, when Mr. Smith read the deeds and ...


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