CARL WAYNE HIXSON ET AL.
AMERICAN TOWERS, LLC
Session August 20, 2019
from the Chancery Court for Hamilton County No. 16-0804
Jeffrey M. Atherton, Chancellor
Hixson and Eric Hixson (the Hixsons) granted a perpetual,
exclusive easement to American Towers, LLC
(ATC) to operate a telecommunications system at
the top of a hill on their property. For many years, the hill
experienced progressive slope failures. A recent mudslide
caused thousands of dollars in property damage to the Hixsons
and All Things Fast Motorsports, LLC (All Things Fast), a
metal fabrication business owned by Wayne Hixson's
grandson. ATC spent thousands of dollars to move a generator
away from the slope failure. The parties fear that the cell
tower could collapse. In the trial court, the Hixsons and All
Things Fast filed a complaint seeking a declaratory judgment
regarding the parties' respective maintenance
responsibilities under the easement agreement. They also
sought damages arising from ATC's alleged breach of the
easement agreement and other tortious conduct. ATC filed a
counterclaim alleging similar causes of action. After a bench
trial, the court ruled that ATC has a duty to maintain the
easement and that the Hixsons have a duty to maintain the
surrounding hillside for the benefit of ATC. Because the
court found that the Hixsons and ATC were equally at fault
for failing to prevent the recent mudslide, the court
rejected their claims of negligence and breach of the
easement agreement. However, the court awarded $1, 245.20 to
All Things Fast on its negligence claim. The court also
awarded $179.99 to the Hixsons on their trespass claim.
Finally, the court ordered the Hixsons and ATC to pay half of
the costs necessary to stabilize the hill in accordance with
the remediation plan proposed by the Hixsons. ATC appeals. We
modify the trial court's declaratory judgment, vacate the
award of damages to All Things Fast, and remand for further
proceedings. The judgment is affirmed in all other respects.
R. App. P. 3 Appeal as of Right; Judgment of the Chancery
Court Affirmed as Modified; Case Remanded
H. Harwell, Chattanooga, Tennessee, for the appellant,
American Towers, LLC.
F. Tucker, Dayton, Tennessee, for the appellees, Carl Wayne
Hixson, Michael Eric Hixson, and All Things Fast Motorsports,
Charles D. Susano, Jr., J., delivered the opinion of the
court, in which Thomas R. Frierson, II, and Kenny W.
Armstrong, JJ., joined.
CHARLES D. SUSANO, JR., JUDGE
Hixson and his son, Eric Hixson, are licensed general
contractors. They reside in Hamilton County. In 1996, the
Hixsons decided to get involved in ARCA racing. They purchased
real property in Soddy-Daisy and built a racecar shop. The
racecar shop is situated at the foot of a large hill that
runs along the eastern edge of the property.
February 1998, the Hixsons entered into a lease agreement
with Chase Telecommunications, Inc. (Chase). The lease
agreement gave Chase the exclusive right to use a portion of
the hill on the Hixsons' property to "provid[e]
communication services." A few months later, Specialty
Constructors, Inc. (Specialty Constructors) constructed a
cell tower and installed other related equipment on top of
the hill. An access road leading to the cell tower
was also constructed. From the public highway, the access
road is steeply uphill; then, after a dogleg to the left, the
access road slopes downhill toward the cell tower for
approximately 190 yards.
purposes of this appeal, it is undisputed that the builder of
the cell tower dug approximately thirty feet into the hill
and left between six and nine feet of extracted fill dirt on
top of the hill. Excess dirt from construction of the access
road was also placed on top of the hill or thrown over the
edge. Wayne Hixson claims that he expressed concerns about
erosion and water runoff during the initial construction of
the cell tower. In the end, nothing was done about the fill
dirt. The builder leveled off the hill, constructed the cell
tower, and installed other related equipment. Sometime
between 1998 and 2000, ATC took over this telecommunications
system by sub-lease from Chase or from one of its
Hixson testified that, in late 1999 or early 2000, part of
the hill "broke off" and slid toward the racecar
shop. He testified that "another mudslide" occurred
in 2001. According to Wayne Hixson, "every time there
was a big rain," the Hixsons would "have mud coming
down through there on the rest of [their] property[.]"
According to the Hixsons, water flows down the access road
toward the cell tower and causes erosion of the hill. Wayne
Hixson claims that he called ATC numerous times asking for
their help, but he did not submit those requests in writing.
According to the Hixsons, ATC was not responsive.
2003, the Hixsons attempted to take remedial action. They
began constructing an RV garage directly below the cell
tower, where the worst mudslides were occurring. They
designed the rear wall of the RV garage to serve as a
retaining wall. The Hixsons also installed a French drain
around the perimeter of the RV garage to divert water runoff.
The first four bays of the RV garage were completed in 2004.
these efforts, the mud kept coming. In 2007, the Hixsons
constructed another four bays adjacent to the existing RV
garage. The Hixsons testified that they used a "skid
steer Bobcat" to remove about four feet of dirt from the
area in order to build the second part of the garage. The
Hixsons insisted that they only excavated loose dirt that had
eroded down the hillside and that they did not dig into the
toe of the hill, which, they said, was marked by several
large boulders. Over the next few years, mud continued
sliding down the hill and piling up behind the RV garage.
2010, the Hixsons and ATC executed an easement acquisition
agreement. In that agreement, ATC promised to pay the Hixsons
$496, 500 in exchange for two easements: (1) a
"perpetual, exclusive easement" to use the land
beneath and around the cell tower; and (2) an "access
and utility easement" to use the road leading to the
cell tower. The Hixsons also promised to assign ATC all of
their rights and obligations as landlords under the 1998
lease agreement. After closing, the parties recorded an
easement agreement in the Register's Office of Hamilton
County. The easement agreement sets forth the parties'
rights and responsibilities in greater detail.
2013, ATC received complaints from its customers about ruts
in the access road. In response, ATC construction manager
Dale Melton sent ATC field operations technician Curtis Utz
to inspect the property. Mr. Utz testified that he had
inspected the property once per year since 2004 and had taken
about fifty photographs of the cell tower and access road.
Mr. Melton also hired a third-party company to inspect the
property. According to Mr. Melton, the third-party company
notified him in May 2014 that the hill appeared to be
failing. ATC claims this was its first notice of the hill
failure, despite the Hixsons' claims to the contrary and
despite the fact that Mr. Utz had conducted annual
inspections of the property for about a decade.
retained GEOServices, LLC (GEOServices) to perform a
geotechnical exploration "to characterize the subsurface
conditions for the existing slope[.]" On August 5, 2014,
GEOServices published a report of its findings and
recommendations. The report confirmed that the hill was
failing. It recommended the use of soil nails to stabilize
the hill. Shortly thereafter, ATC asked GEOServices to
provide a design for a soil nail remediation plan that ATC
could send to potential contractors. On August 27, 2014,
GEOServices published a report of its soil nail remediation
December 2015, Soddy-Daisy experienced an extraordinary
amount of rainfall. According to Wayne Hixson, it rained
"four or five days in a row" leading up to
Christmas. He testified that "the total rainfall was
about seven inches" and that it rained "about two
inches" on Christmas eve. On Christmas day, the Hixsons
discovered that there had been another mudslide. This time, a
tree and "about two loads of chert" crashed through
the roof of the RV garage. This damaged the RV garage and
equipment owned by the Hixsons and All Things Fast. As a
precaution, ATC spent about $25, 000 to move a generator away
from the slope failure. ATC also placed a tarp over part of
2016, ATC finally got around to repairing the access road.
Patrick Barry, ATC's Director of Architectural
Engineering, supervised this project. Mr. Barry testified
that ATC graded the access road using crusher run, which is
designed to withstand erosion. Mr. Barry also testified that
ATC dug a ditch along the eastern side of the road and
"pitched" the road from west to east so that water
would run into the ditch. Finally, ATC constructed a
"level spreader" at the end of the access road near
the cell tower. The level spreader was designed to collect
water from the ditch and discharge it to the east of the
Hixsons' property. Dr. James Smoot, a hydrologist,
testified that ATC's 2016 improvements were properly
designed to direct water away from the Hixsons' property.
December 7, 2016, the Hixsons and All Things Fast filed their
complaint. They sought: a declaratory judgment regarding the
parties' maintenance responsibilities under the easement
agreement; $40, 000 in damages arising from ATC's alleged
breach of the easement agreement and other tortious
conduct; punitive damages; "[a] yet
undetermined sum to correct the erosion and water runoff
issues"; attorney's fees and costs; and "[a]ll
other general relief deemed just and proper[.]"
"Answer and Verified Counterclaim," ATC denied
responsibility for the hill failure and asserted a variety of
defenses, including: failure to state a claim upon which
relief can be granted; comparative fault; and "all
applicable statute[s] of limitations and statutes of
repose[.]" ATC also sought: an unspecified amount of
damages arising from the counter-defendants' alleged
negligence and breach of the easement agreement; "an
Order compelling the [Hixsons] to take immediate measures and
corrective action to provide stabilization to the
slope/hillside"; attorney's fees and costs; and
"all other general relief deemed just and
2017, the court held a hearing on ATC's request for
injunctive relief. The court heard testimony from several
witnesses and received twenty-one exhibits into evidence.
Ultimately, the court denied ATC's request for injunctive
relief and ordered the parties to attend mediation. When
mediation was unsuccessful, both parties filed motions for
summary judgment. The court denied both motions and set the
case for trial.
three-day trial took place from January 30, 2018 to February
1, 2018. The court heard testimony from ten witnesses,
including the Hixsons, ATC representatives, and multiple
expert witnesses. Pursuant to Tenn. R. Civ. P. 65.04(7), the
court also considered the testimony and exhibits entered into
evidence during the May 2017 hearing. The court set forth its
findings of fact and conclusions of law in a twenty-page
memorandum opinion and order filed on August 6, 2018.
court "found the testimony of Wayne Hixson to be
generally credible, though not always in the Hixsons'
favor." On the other hand, the court found the testimony
of Dale Melton and Patrick Berry to be "somewhat
unpersuasive." For example, the court disbelieved Mr.
Melton's testimony that ATC first received notice of the
hill failure in May 2014. Instead, the court found that
Curtis Utz, who conducted annual inspections of the property,
"had almost as much of an opportunity as the Hixsons to
observe the open and obvious erosion taking place on the
court also made factual findings regarding the cause of the
[T]he original construction of the tower and tower pad in
close proximity to the edge of the hill likely caused and
contributed to the erosion. The proof at trial showed that,
during the construction of the tower and tower pad, the
builder dug down approximately thirty feet and left the
extracted fill dirt on top of the hill, much of which was
within the Easement area. This was specifically supported by
the testimony of Mr. Hodnett, stating that the failure of
[the] hill occurred at the top, rather than at the toe. That
fill dirt has caused an excess of earth moving down the hill
over the years since construction.
the court found that the original construction of the cell
tower led to the instability of the hill, the court ruled
that the Hixsons and ATC were equally at fault for failing to
properly maintain their respective areas of the property. For
example, the court found that ATC failed "to secure the
dirt next to the concrete pad and within the Easement"
and failed "to control water on the tower pad from
running down the hillside above the RV
Garage[.]" On the other hand, the court found that
the Hixsons failed to cover the bare hillside or promote the
growth of vegetation on the hill, which, according to Dr.
Smoot, would have prevented erosion. To their credit,
however, the court found that the Hixsons did not
cut into the toe of the hill during the construction of the
court ruled that most of the parties' claims were without
merit. Relevant to this appeal, the court awarded $1, 245.20
to All Things Fast on its negligence claim. The court also
awarded nominal damages to the Hixsons after finding that ATC
trespassed on their property during ATC's 2016
improvements to the access road. The court rejected ATC's
claim against the Hixsons for breach of the easement
agreement. The court also ruled that the doctrine of
comparative fault barred ATC from recovering on its
negligence claim against the Hixsons. Finally, the court
rejected ATC's claims against All Things Fast because All
Things Fast was not a party to the easement agreement and did
not owe ATC a duty of care.
December 2018, the court held a third hearing on the issue of
remediation. Jimmy Mason, a general contractor, testified on
behalf of the Hixsons. He recommended the construction of a
larger retaining wall at the bottom of the hill, which he
estimated would cost $332, 480. Mr. Mason's remediation
plan had not been approved by a professional engineer at the
time of the hearing. Derek Kilday, the Vice-President and
Senior Geotechnical Engineer at GEOServices, testified on
behalf of ATC. Mr. Kilday recommended the installation of
soil nails at the top of the hill, which he estimated would
cost $615, 000. Mr. Kilday believed that the installation of
soil nails would be much safer for the construction workers.
However, he admitted that his remediation plan would not
involve removal of the dirt that has piled up behind the RV
garage. At the conclusion of the hearing, the court stated
Although less sophisticated, the testimony provided by Mr.
Mason provides a more comprehensive approach to the retention
of the hillside. I heard Mr. Kilday testify, and I even
followed it up, [his] primary concern with regard to the
poured wall approach dealt with the safety of the workers,
not with the efficacy of the structure.
Under the circumstances, based upon the proof presented to
me, and we're looking for a long term comprehensive fix,
rather than the somewhat more narrow approach that the soil
nails would provide, the testimony provided to the Court
persuades this Court that the poured wall approach presented
and suggested by Mr. Mason at the cost of $332, 480 is the
most appropriate mechanism to effect the security of this
court ordered the Hixsons and ATC to pay half of the costs
necessary to stabilize the hill in accordance with the
remediation plan proposed by the Hixsons. ATC appealed.
Later, upon motion of the parties, the court entered an
agreed order staying enforcement of its judgment pending the
resolution of this appeal.
not stated as such, ATC raises the following issues:
Whether the Hixsons' claims are barred by the three-year
statute of limitations set forth in Tenn. Code Ann. §
Whether the trial court erred by declaring that ATC has a
duty under the easement agreement to maintain the easement on
top of the hill.
Whether the trial court erred by rejecting ATC's claim
against the Hixsons for breach of the easement agreement.
Whether the trial court erred by rejecting ATC's
negligence claim against the Hixsons.
Whether the trial court erred by awarding $1, 245.20 to All
Things Fast on its negligence claim.
Whether the trial court erred by ordering the parties to
repair the hill in accordance with the Hixsons'
Whether the trial court erred by ordering ATC to pay half of
the costs necessary to implement ...