 

FILED

05/24/2019

IN THE COURT OF APPEALS OF TENNESSEE aaa
AT KNOXVILLE Appellate Courts

 

 

 

April 17, 2019 Session
ERIC LOVETT ET AL. Vv. MARSHALL STEVEN COLE, JR. ET AL.

Appeal from the Chancery Court for Roane County
No. 2016-81 Frank V. Williams, III, Chancellor

 

No, E2018-00719-COA-R3-CV

 

AND

RALPH SALAS ET AL. Vv. MARSHALL STEVEN COLE, JR."

Appeal from the Chancery Court for Roane County
No. 2016-133 Frank V. Williams, III, Chancellor

 

No. E2018-01082-COA-R3-CV

 

Eight 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

 

! These two matters were consolidated at trial and for the purpose of oral argument before us.

2 The last name of the subdivision’s creator is “Daniel.” However, the subdivision’s designation

took on the plural “Daniels.”

Sn
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

CHARLES D. SUSANO, JR., J., delivered the opinion of the court, in which JOHN W.
MCCLARTY, and THOMAS R. FRIERSON, II, JJ., joined.

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.
OPINION
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

DE
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 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]; LIEN 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
Mts. 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 MELVIA_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.

 

3 The tract number for each of the initial eight is circled on Figure 1.

ioe
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
comer 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

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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.

 

    

           
   
    
 

 

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Figure 1.

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.

 

   

VICINITY MAP ot

GENERAL NOTES

i. [ron rods set at all property corners, except
ag noted,

2 For Subdivision Restrictions and/or Covenants

see DEED HOOK _FAR; PAGE _15'1_

3% All read Right of ways are 50 fast wide.
as noted.

4. Subject to any and all restrictions,
one cen am planni eoraeianion
nr of way, a SCI
if any, affecting said land. mee ents

Figure 2.

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 §. 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:

=6=
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.”* 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.”

 

4 Sometimes referred to by witnesses as Kudzu Lane or Kudzu Road.

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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:

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.. never was called Daniel Road.
What was it called?
It wasn’t called anything until I named it Kudzu.

Why did you name it Kudzu Road?

> QO F QD &

‘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...

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

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“I know it’s Kingston Highway,” and she twice responded that “109 Daniel Road” does
not exist.

Mrs. Daniel testified that she later deeded the disputed strip of land she refers to as
“Kudzu” to the Coles, after the present litigation began. She never deeded the Disputed
Drive to the homeowner’s association, as plaintiffs contend; she testified that the
Disputed Drive “goes with the house [tract 9]. Anybody should know that.” She testified
that: :

they should have known that Kudzu Drive went with the
house [tract 9]. If you would take a look and drive out there,
you’d see it has to be a driveway.

When asked if the easement makes a continuous loop from the western part of U.S.
Highway 70 to the eastern part of U.S. Highway 70; she said that was not accurate, nor
was it ever the intention. She did not recall what the various documents she signed said,
but acknowledged that she signed them. She reiterated that the Coles have the deed to the
tract that includes the disputed “Kudzu” drive.

Defendants then called two long-time Roane County resident witnesses to testify
regarding the existence of an independent Kudzu Drive. The two witnesses do not live in
the subdivision, but each has lived on property in close proximity to what is now Daniels
Estates for several decades. They both recounted an independent Kudzu Drive and the
gates having pre-existed defendants’ residency.

The first long-time resident witness, Jerry Pickell, testified that he currently lives
at “4016 Kingston Highway. That’s just across Highway 70 from Kudzu Road.” He lived
there from January 1940 until September 1960; he returned in 1995 and has lived there
since. He indicated on the plat that the Disputed Drive is what he refers to as “Kudzu
Road.” The end of his driveway is directly across from the Disputed Drive. He recalled
growing up across from the Daniels’ property. He testified that Mrs. Daniels used to
supply his family with milk and that he used to mow their lawn as a youth. He testified
that “Kudzu” has always been a driveway: “[w]hen someone asked, ‘[wJhere does Mr.
Daniels live?’ we’d say, ‘[r]ight down there is his driveway [.]’ ”

Mr. Pickell witnessed the previous owner of tract 9, Mr. McCurry, install gate B at
the end of the “driveway.” He testified to the undeveloped nature of Kudzu Drive, stating
that after passing through the driveway portion, there was a dirt road that was “real
rough....you didn’t want to drive a car down it.” On cross, Mr. Pickell was asked whether
the “rough” segment of the disputed road had ever been smoothed out prior to Mr. Cole
moving in, and he replied no.

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The second long-time resident witness, Mr. Schrimpsher, testified that he lives
along U.S. Highway 70 bordering defendant Coles’ property to the east. He has been on
the property for 60 years. When asked the location of “Kudzu Drive,” he testified that:

ever since I’ve been old enough to know anything...it was at
first Sam Daniels’ driveway. Then he passed away, and
Calvin got the place, and it become Calvin Daniels’ driveway.
He passed away, and then Peggy Daniels lived down there for
awhile, and it was her driveway. And all I’ve ever knowed it
is a driveway, is all I could say. It was a driveway.

He testified that the Disputed Drive was never called “Daniel Road.” There used to be a
“Kudzu Drive” sign. He recalled it was at first a wood sign, and then a metal sign. He
testified that the gates allegedly installed by defendants pre-existed defendants; they were
installed by previous owners for cattle and pig retention purposes.

Mr. Schrimpsher recalled that Mr. McCurry (the owner immediately prior to
defendants) used the gates because he had an issue with trespassers going “through his
property;” he testified that “there was too many people coming in and out of that road at
night.” He concluded by testifying that there is a guardrail on U.S. Highway 70, but he
stated that individuals can access tract 10 (the Salas’ property) from the portion abutting
the highway, “I know there’s places you could go in, in it, if you wanted to make a road.”

As discussed elsewhere in this opinion, Mr. Leggins was the surveyor
commissioned to survey Mrs. Daniel’s real property for her to sell. He laid out the
subdivision, in its entirety, including the location of the access road, on a plat. He is
designated on the recorded plat as the “surveyor.” The plat is stamped with his seal and
dated April 4, 2002. At trial, he clarified the location of the intended access road.

Mr. Leggins testified that the original subdivision consisted of eight tracts. The
“intended access to these tracts [tracts 1 through 8] was what you, or someone, has
marked in the pink [Loop Access Road].” The Loop Access Road did not have a name at
that point; it was just the subdivision’s easement. Kudzu Drive was not a part of the
easement; it is labeled independently on the plat’s vicinity map. Mr. Leggins testified that
Kudzu Drive “was not part of the subdivision, per se, and was not an access;” he testified
that the Disputed Drive was “[Mrs.] Daniel’s driveway:”

Q: All right. This, what's marked yellow [Disputed Drive]
on here, is actually identified on this vicinity map, isn't

it?

A Yes.

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And it's identified as what?
Kudzu Drive.

Do you know when this road was named Daniel Road,
this loop access road?

All I know is it was -- it took on a name, for I guess
the mail carrier, after the subdivision -- after I laid out
these lots.

Well, can you show the [c]ourt what you were tasked
with laying out as the access road to this subdivision.

The intended access to these tracts was what you, or
someone, has marked in the pink [Loop Access Road].
This part here (pointing) was not --

Let the record reflect he's covering up the [Disputed
Drive] yellow tract -- yellow road with his hands.

That was not part of the subdivision, per se, and was
not an access. I don't -- I really don't know when that
took on a name, and I don't even know for sure what
that name is now.

Now, you stated earlier that this that's marked in pink
was graded out at one point. The complete loop was
graded out, opened up, this whole -- this complete
loop, wasn't it?

Well, pretty much. That was the part that was
accessible to me. As I stated initially, it was just a
grown-up wilderness. And so I picked out -- see, I had
it all, the whole boundary, surveyed. That's the way I
always made any subdivision. You've got to know
what the whole is and where you can divide it. And so
this lended [] itself as something that would be -- give
road frontage and divided up in areas and also building
sites.

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Q: Do you know how this property lays, what's marked as
[t]ract 10, coming off of [U.S. Highway 70]? Is it
accessible anywhere in here?

A: Yes, it's accessible all -- all -- just about all of it.

Mr. Leggins then clarified why the subdivision’s access road, as he describes it, and
Kudzu Drive look the same width on the recorded plat:

Q: All right. Can you tell the [c]ourt why this is marked
out in a 50-foot designation, this Kudzu Road we’re
talking about that’s marked in yellow?

A: In laying out this subdivision, back then and now, the
minimum right of way that the State requires is 50 feet.
And so I gave this, in laying this out, all of it a 50-foot
right of way or roadway. And if Ms. Daniel wanted at
some later date to create or to sell off what is
designated 9 and 10, the surveying would already be
done. It’s just easier not to have to come back and re-
lick a cat, at the expense of the client. And this is, as it
is, it’s terribly curvy, and it’s [] pretty much steep all
of the way, hardly [] traversable with a two-wheel
drive car. And I might add that this subdivision when
laid out [] the road areas were graded. Ms. Daniel got
some contractor to do it, and they graveled it. This was
the last subdivision in our county to be approved with
gravel roads.

Q: What they graded and graveled was this area that’s
marked in pink [Loop Access Road], correct?

A: That’s correct.

Q: They didn’t grade and gravel this area marked in
yellow [Disputed Drive], did they?

A: They did not.

He acknowledged that the exhibit A plat has no indication of a “Daniel Road,” but that it
does indicate a “Kudzu Drive:”

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Q: Once again, if this [recorded plat] is notice to the
whole world, nowhere on this [e|xhibit A does it say
Daniel Road, does it?

A: That's correct.

Q: But there is a notation identifying Kudzu Drive,
pointing to that squiggly line, which has been colored
in yellow on this big map, isn't there?

A Yeah,

Q: So if someone were to go into the courthouse to rely
on this map, they would see a notation showing Kudzu
Drive, referencing this squiggly yellow road, correct?

A: Yes.
Q: And nothing identifying Daniel Road?
A: Correct.

Mr. Leggins testified that the Salas’ tract 10 is accessible from the portion of the property
abutting U.S. Highway 70.

Additionally, Karen Conner testified; she lives on real property abutting U.S.
Highway 70, and bordering Daniels Estates tracts 2 and 3 to the north and tract 10 to the
south. She testified that the Salas’ have been trying to sell their real property for the past
seven years or more. She attested to defendants’ contentions that they have ongoing
issues with people coming on their property without permission. She has called to inform
Mr. Cole of trespassers on his property. She testified Mr. Cole is a good and helpful
neighbor. \

Following the above testimony, the court concluded the portion of the trial
regarding the subdivision’s disputed easement. The Salas plaintiffs closed by stating that:

the record is clear that my clients have been enjoined from all
access on the portion of the road marked in yellow [Disputed
Drive], and based on the testimony of Mr. Perry and Mr.
Hutchison, we’re asking for a permanent injunction in
addition to this ownership question getting resolved so that
this doesn’t happen in the future. I think the testimony is clear
that that’s going to be necessary.

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In closing, defendants argued that:

by the testimony of all the people that testified, the only
evidence before the Court at this point in time is that there’s
only one piece of roadway, the driveway, that’s identified on
this document anywhere. It’s in the vicinity map, and it is
Kudzu Drive, which is marked in yellow [Disputed Drive].
The rest of the testimony by all of the fact witnesses that have
been in this area for 60-plus years is that this area marked in
yellow is, was, and always has been the Daniel driveway, it
was never meant to be access to Daniel Estates subdivision,
and that the access road to Daniel Estates subdivision was
marked in pink here as a loop. Peggy Daniel testified that [the
Salas’ property] was to have access from [U.S. Highway 70]
and her tract accessed [U.S. Highway 70] through Kudzu
Drive. That’s the testimony that the Court has, considering
that ambiguity that exists, and it’s a very patent ambiguity in
this matter.

The Court is fully aware of the arguments in contract law that
the intention of the parties at the time of executing the
agreement — the agreement being the deed -- that is signed by
the party to be charged, Melvia Mae Peggy Daniels, should
control. In other words, the object to be obtained in
construing the contract is to ascertain the meaning and intent
of the parties as expressed and the language used is to give
effect to such intent if it does not conflict with any rule, law,
public policy. Well, that contract said she deeded them Daniel
Road. It didn’t say Daniel Road and Kudzu Drive. It said she
deeded them Daniel Road...

The witness that has testified as a fact witness, Mr. Bill
Leggins, testified that this is demarked as a 50-foot easement
because that was what the State required. And if he’s going to
put a road on there, there's no sense in coming back and, I
think he said, licking that cat twice. So he put a 50-foot road
easement in there, but there’s nothing deeding that strip to the
homeowners’ association. The only thing referenced to the
homeowners’ association was deeding Daniel Road. So as the
Court is well aware, contracts are to be enforced as written
unless they’re ambiguous. Then you have to use parol
evidence. That's 47-50-112, and it’s — there’s no mistaking, in

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getting to that attention, you have to go to what their intention
was as embodied and expressed in the instrument as written.
And the instrument as written only deeds Daniel Road. The
weight of all the evidence, yes, there’s documents that
reference there was a — there was an easement, but the
easement referenced in the plat goes to the plat named and
dated and listed and filed. And you go to that plat, and if
you’ve got any sense whatsoever, you look at it and you can
see there’s one road identified on there, Kudzu Drive. So the
intent of the parties when she deeded that strip of land known
as Daniel Road to the homeowners’ association was that
which has been marked in pink that makes a loop, and that’s
all the access that they -- that they were deeded, and it’s all
the access that is needed. They can go in, they loop around,
they come back out, and they go out. She testified that these
two tracts were hers, she still lived there, and that was her
driveway. She never deeded it to the homeowners’
association. She kept it. It was never meant to be deeded to
the homeowners’ association. It was her driveway. Mr.
Schrimpsher says it was her driveway. Mr. Pickell, who’s as
much of a historian in this area as there is, says that’s always
been the Daniel driveway. It was never anything other than
the Daniels’ driveway. And then when Mr. McCurry had it, it
was Mr. McCurry’s driveway. They didn’t testify that it
became a road after Mr. McCurry got it. Mr. McCurry got it
after it was divided...

And the testimony was that — that “Daniel Road” sign was put
up by Cathy Rakestraw, that the “Kudzu Drive” sign existed
before the property was subdivided. So, I mean, the intent of
the parties when that road was deeded to the homeowners’
association was for that to be Daniel Road as that loop, and
Kudzu Drive was never part of that.

The trial court immediately held, from the bench, that that there was no ambiguity
in the documents. It held that Mrs. Daniel’s testimony is “an attempt to contradict the
plain and unambiguous language of the documents, the plat which she had Mr. Leggins
prepare and the restrictive covenants.” The court noted that Mr. Leggins testified that the
subdivision, as shown on exhibit A, initially included eight lots intended for sale, but that
it was clear she might want to sell the last two lots. The court determined that her future
intent to potentially sell the lots does not alter the plat as recorded. The court commented
that the testimony indicates that the Loop Access Road was originally graded for access,
but that it “has not been used or maintained and is now grown back up so that we have

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only the pink area that extends furthest to the east, which connects with Tracts 4, 5, 6, 8,
and 9.”

The court further held that the information in the vicinity map “simply locates the
subdivision for the purpose of reference.” It held that one could “assume that all of the
road, including the [Disputed Drive] and [Loop Access Road], were Kudzu Drive.”
Ultimately, it determined that the name designation does not matter, because the road, as
the court understands it is “dedicated to the people who own lots in the subdivision.” The
court continues that:

[a]nd where it says “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” -- and it doesn’t
refer to the road there by name at all, so that we could give, in
essence, any name to that, whether it’s Kudzu Drive or
Daniels Drive or whatever, and that wouldn’t change the
effect of the recorded documents, the documents that give
legal effect to this subdivision. It wouldn’t change anything
by how we refer to that insofar as the foundational documents
are concerned.

It then held that the conveyance from Mrs. Daniel to the Coles of Kudzu Drive, in 2016,
was of no effect, because it was an attempt to change the outcome of a lawsuit after it had
begun. It held that Mrs. Daniel had already conveyed this property to the homeowners
association in the Homeowners Easement Deed. The court held the specific reference in
the Homeowners Easement Deed conveying what is “more commonly known as Daniel
Road” was:

a superfluous, unnecessary descriptive term which does not in
any way affect the division of the road as shown on the plat
between the area that’s marked in pink and the area that’s
marked in yellow.

In the court’s subsequent judgment, it held that the whole of the 50-foot roadway shown
on the plat constitutes the easement, and “said entire 50-foot roadway was conveyed to
Daniel Estates Subdivision Homeowners’ Association by Tennessee Quitclaim Deed
from Melvia Mae Daniel.” The court ordered defendants to immediately abate
obstruction of the road:

by removing the gates, the berm, and anything that might be
preventing ingress and egress by and along Kudzu Drive or
Daniel Road to Tract 10 or to any other lots of the Daniels
Estates Subdivision.

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Following the trial court’s pronouncement of its holding from the bench, defendants
attempted to present argument about a document referred to as the “Dedication of
Easement,” which was submitted to the court among the stipulated exhibits. The court
refused to address any issues or hear any argument based on the document, because no
testimony or other proof had been presented to the court about the document during the
evidentiary proceeding. The court instead proceeded to the damages portion of the trial.

Cc.

The Lovett plaintiffs’ claim for “damages [are] the attorneys’ fees Frantz,
McConnell & Seymour have expended in representing the Lovett plaintiffs in this
lawsuit.” Defendants counter that damages are not warranted, because they had a good-
faith belief, based on the representations of the original developer and all testifying non-
party neighbors, that Kudzu Drive is a drive situated exclusively on their property and is
their private driveway. All of defendants’ actions were purportedly taken in defense of
their property ownership.

Mr. Salas testified that he has “lost a sale” as a result of defendant Mr. Cole’s
actions. The Disputed Drive has allegedly become overgrown or otherwise damaged, and
he believes he is therefore entitled to restoration and attorney’s fees and expenses.
However, he conceded that he does “not know the condition of the property.”

April Freeman, a resident of 4101 Kingston Highway, testified on behalf of the
defendants. She recalled the events recounted by Mr. Hutchison in the first part of the
trial. She testified regarding the allegedly “threatening” encounter:

I looked outside -- and I was home alone -- and there was two
vehicles in the driveway between Mr. Cole’s driveway and
our driveway. And I didn’t know who they were, and so I
called Mr. Steve [Cole] up and I asked him if he knew these
people. He said he’d be right up there in a moment to check it
out. The reason I did so is because we had already had so
many people coming in and out of our driveway, not knowing
who they were, which made me nervous because I was by
myself often in the daytime. So I felt safer if I had Mr. Steve
come check it out.

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Mr. Steve came up and respectfully asked the gentlemen what
they were there for, and then they told him, and he politely
asked them to move off that particular area just because it was
in our driveway and [] that was bringing people in with
solicitation that we didn’t necessarily want there. And then
they continued their conversation. At that point in time is
when I went back inside. It seemed like they had it under
control. .

She did not observe any argumentative behavior.

Mr. Cole testified that the various impediments he allegedly erected pre-existed
his family’s residency. The berm pre-existed his purchase of the property; he has
however maintained its height and integrity. He testified that:

the gate here has always been there. It was there when we got
there. It was locked when we got there. The berm was there.
The gate to the north we installed, but that’s nowhere near
[t]ract 10.

Mr. and Mrs. Cole both testified that they have on-going issues with individuals coming
onto their property without authorization.

Mr. Cole recounted a substantially different narrative regarding his encounter with
Mr. Perry, the purported potential buyer of the Salas’ property. He testified that, on the
night at issue, he noticed individuals on his property at nighttime. He testified that it was
“pitch black” when Mr. Perry was purportedly there to view the property. Mrs. Cole
testified that there was no reason to believe that these people were there to view real
estate that was for sale, because “they were on our property and we saw flashlights on our
property.” Because it was night time, Mr. Cole called 911 to report the unknown
individuals on his property without permission:

[t]here was no real estate for sale there. So my assumption
was never real estate, or I — you know, my [] initial
assumption is why are they in our property? Why was he up
in our property with a flashlight, coming out of the woods,
and why did they take off so quick? My first assumption to
assume was ‘They’re hunting. They're up to something no
good. Get some information.’

Sarah Cole, defendant’s wife, testified that:

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we got on the phone with 911, and we were tying (sic) to
basically get a license plate because we had been concerned
in the past with people going onto our property and possibly
hunting, you know, people coming onto our property. So we
were trying to make a report with 911, so we were on the
phone with them, and we basically drove far enough to
basically get their license plate and everything...

We've also had people at our house when we’re living there
that actually came into our house and tried to steal stuff
multiple times while we were remodeling our house. So we
had concerns for that as well.

Mr. Cole also testified that he has never been on tract 10, and has not left any
garbage or anything of that nature on their property, as alleged by the Salas plaintiffs.
Additionally, regarding Mr. Hutchison’s testimony, Mr. Cole denied ever having made
any “threatening” comments, and even recalled having his baby in his arms when he
spoke with Mr. Hutchison. He testified that he has never driven anyone off the property,
but he has asked visitors to not block access to the Freemans’ driveway.

Lastly, Mr. Cole testified that the Salases have been trying to sell their property for
a while, and have even solicited him as a potential buyer:

[w]hen Ralph [Salas] and I had spoken, when I had learned of
the property being for sale, initially he had tried to engage us
about buying this property [tract 10]. That didn’t work out,
especially after we met people that said the address -- or the
location of that road or that property is not and has never been
on Daniel Road. I became very suspicious of what all of them
were trying to do, and it was almost like they were trying to
force us into buying the property. Can’t use the word
‘blackmail.’ But they were really twisting our arm to buy the
property under the guise of ‘If you buy this property, you'll
have more votes against the HOA and that way you won’t
have to pay for the road.’

After hearing the proof as to damages in this matter, the trial court stated from the
bench that:

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I’m not inclined to disbelieve the Coles when they say that
this is or was and could, if left to chance, become a problem
area out there for people who are wanting to hunt on other
people’s property or to find a place to park and to drink and to
do other things that might damage their property or other
neighbors’ property.

It seems to me to be the kind of place that you could expect
trouble to arise, and I don’t -- I think the Coles were
absolutely wrong in their methods by erecting the gates, by --
I believe he constructed the berms. But I didn’t hear anything
to indicate that he was doing that for the purpose of trying to -
- that he was doing it for a malicious reason or doing it
recklessly. He may have had a long-term view, and that might
be why he got the deed from Ms. Daniel of acquiring the
road.

The court took the matter under advisement, noting:

[g]entlemen, I’m going to take this under advisement for a
few days, and I’m going to think about it. There’s no reason -
- first of all, I'll tell you that I don’t think there’s any reason
why I have to, even if I award damages against Mr. Cole, why
I have to award all of the attorney fees and litigation
expenses. There’s no reason I have to do that. I don’t think
the law requires such a result.

Contrary to its prior pronouncement, in the court’s subsequent memorandum
opinion, the court held defendants’ testimony that their alleged actions were taken in
defense of what they sincerely considered to be their property was not credible. The court
disregarded defendants’ arguments that the obstructions on Kudzu Drive pre-existed their
residency, instead held that defendants had “erected two locked gates,” and held that any
previous grants and uses were irrelevant in the present matter. The court also held that the
Salases “clearly hold the right to use Kudzu Drive for ingress and egress in common with
all other lot owners.”

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
two consolidated matters. The court awarded an additional $750 to plaintiffs, in Eric
Lovett et al. vy. Marshall Steven Cole, Jr. et al., for attorney’s fees and expenses incurred
in preparing the final order for the court. Defendants appeal.

Dp:
II.
Defendants raise the following issues:

Whether the trial court erred in holding the quitclaim deed
executed by Ms. Daniel that granted “Daniel Road” to the
subdivision’s homeowners association included “Kudzu
Drive.”

Whether the trial court erred in holding defendants slandered
plaintiffs’ titles.

Whether the trial court erred in awarding plaintiffs’ attorneys
fees and expenses.

Plaintiffs raise the following issues:

Whether volumes VI, VII, and VIII of the record herein must
be disregarded, along with the assertions in defendants’ brief
based thereon.

Whether the portions of defendants’ brief raising assertions
that are not supported by citation to the record must be
disregarded.

Whether the portions of defendants’ brief raising assertions
referencing large segments of the record must be disregarded.

Whether those claims raised in defendants’ brief and not
asserted at trial must be deemed waived on appeal.

Whether the trial court properly refused to hear argument on a
matter not presented at trial.

Whether the trial court properly determined that the entire
right of way shown upon the recorded plat of Daniels Estates
Subdivision is owned by the subdivision’s homeowners
association.

Whether the trial court properly ordered defendants’ removal

of the gate blocking the alleged joint and permanent
easement.

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Whether the trial court properly awarded plaintiffs’ attorneys
fees as damages as a result of defendants’ slander to title.

Whether plaintiffs are entitled to an award of attorney fees
incurred as a result of this appeal for continued slander to title
or for frivolous appeal.

Pursuant to orders entered by this Court, the record on appeal was supplemented
with documents filed in the trial court by defendants. Importantly, these documents were
not filed with the trial court before trial or entered as exhibits at trial. We limit our review
to those issues raised, presented, and argued before the trial court. Specifically,
arguments surrounding a 2004 document referred to as the “Dedication of Easement”
have been waived, as no testimony or other proof was presented at trial regarding its
effect upon the issues before the court. With these limitations in mind, we proceed to our
review.

Il.

In this bench trial, our review is de novo upon the record, accompanied by a
presumption of correctness of the findings of fact of the trial court, unless the
preponderance of the evidence is otherwise. Tenn. R. App. P. 13(d); Bogan v. Bogan, 60
S.W.3d 721, 727 (Tenn. 2001). A trial court’s conclusions of law are subject to ade
novo review with no presumption of correctness. S. Constructors, Inc. vy. Loudon County
Bd. of Educ.,58 S.W.3d 706, 710 (Tenn. 2001).

IV.
A.

It is important to note at the outset of our analysis that the Daniels Estates
Subdivision was created in 2002. Correspondingly, the relevant documents that
established the original dedication of the joint permanent private easement were executed
in 2002; these include the 2002 recordation of the plat and the 2002 execution of the
Restrictions. With this in mind, we begin our review by looking only to the two
foundational documents in order to ascertain whether the trial court erred in holding that
there is no ambiguity in those documents as to the location of the easement established
therein.

“The construction of restrictive covenants, like other written contracts, is
a question of law.” Hughes v. New Life Dev. Corp., 387 S.W.3d 453, 480-81 (Tenn.
2012). “The central tenet of contract construction is that the intent of the contracting
parties at the time of executing the agreement should govern.” Planters Gin Co. v. Fed.
Compress & Warehouse Co., Inc., 78 S.W.3d 885, 890 (Tenn. 2002). “In the

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construction of instruments creating easements, it is the duty of the court to ascertain and
give effect to the intention of the parties.” 28A C.J.S. Easements § 57 (1996); Burchfiel
vy. Gatlinburg Airport Auth., No. E2005-02023-COA-R3-CV, 2006 WL 3421282, at *3
(Tenn. Ct. App. Nov. 28, 2006).

If the language in the contract is clear and unambiguous, then the “literal meaning
controls the outcome of the dispute.” Allstate Ins. Co., 195 S.W.3d at 611; City of
Cookeville, Tn. v. Cookeville Regional Med. Ctr., 126 S.W.3d 897, 903 (Tenn,
2004); Planters Gin Co., 78 S.W.3d at 890. If, however, the language in a contract is
susceptible to more than one reasonable interpretation, then the parties’ intent cannot be
determined by a literal interpretation of the contract. Allstate Ins. Co., 195 S.W.3d at
611 (citing Planters Gin Co., 78 S.W.3d at 889-90). Contract language “is ambiguous
only when it is of uncertain meaning and may fairly be understood in more ways than
one.” Allstate Ins. Co., 195 S.W.3d at 611 (quoting Farmers—Peoples Bank v.
Clemmer, 519 S.W.2d 801, 805 (Tenn. 1975)).

The trial court concluded, as a matter of law, that the Restrictions and plat, when
read in conjunction, are unambiguous as to the location of the intended easement. When
rendering “its opinion from the bench,” the court held:

the real issue here as raised by [defense counsel] is this issue
about whether or not there’s some ambiguity here. And I have
looked at all of this, and I don’t find any ambiguity at all. I
don’t see any ambiguity in these documents, and for Ms.
Daniel to testify what -- and what secret intent she may have
had is, of course, an attempt to contradict the plain and
unambiguous language of the documents, the plat which she
had Mr. Leggins prepare and the restrictive covenants, which
were also prepared and recorded along with the plat. And the
plat and the restrictive covenants should be considered
together. They’re not separate documents. They are actually
part of one document, and so we need to look at them and
construe them together.

Significantly, there is nothing in the Restrictions’ description of the easement that
specifies its intended parameters; it merely says “a private joint permanent easement as
the same is shown on the recorded plat of said subdivision.” A review of the four corners
of the referenced plat does little, if anything, to provide clarity as to the location of the
easement, The recorded plat identifies several items by specific reference: “U.S.T.V.A.
power transmission lines,” a “tower,” the various subdivision tracts and their acreage, the
names of property owners in parcels abutting the subdivision and their respective
property attributes and recorded plat location, various “iron rods” marking tract
boundaries, “U.S. Highway 70,” “Kudzu Drive,” and the fact that “Dogwood Road” iS

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located approximately a half a mile from what is identified as Kudzu Drive in the vicinity
map, just to name a few. However, there is no easement identified anywhere within the
subdivision shown on the plat. The easement’s location is also not otherwise identified
anywhere on the perimeter of the plat.

There is a segment on the plat that appears to be a surveyed road within the
subdivision. The only segment of the surveyed road that is denominated on the plat is a
portion identified as “Kudzu Drive,” which is identified in the plat’s vicinity map. There
is no break in the surveyed road, and therefore there is no clear indication of Kudzu
Drive’s precise parameters. While one might be tempted to conclude that the whole of the
surveyed road is the easement, we are left to wonder why no reference was made to
Kudzu Drive in the Restrictions’ crude description of the easement. Given that the
Restrictions creating the easement specifically reference the plat, we know that the name
of Kudzu Drive was available to the drafters of the Restrictions for specific reference if
Kudzu Drive was intended to denominate or otherwise define the easement at issue, or
even a part of the easement at issue. It was not. It is possible to reasonably conclude that
Kudzu Drive is labeled on the plat to indicate that it is a separate road within the
subdivision independent of the easement; it is also possible to reasonably conclude that
Kudzu Drive is labeled and the subdivision’s easement road is not, because the easement
did not have a name when the plat was created, but Kudzu Drive did. With the
information available at this juncture, we are unable to draw any such conclusions, as a
matter of law, absent clear support in the documents, of which there is none. Additional
information is necessary, because the provision at issue is uncertain in meaning and may
fairly be understood in more ways than one.

Therefore, even when read in conjunction, the Restrictions and the plat do not
sufficiently identify the location and parameters of the easement “as the same is shown
on the recorded plat.” More than one reasonable conclusion could be reached. The
language used in the foundational documents alone is therefore insufficient to resolve the
present dispute. Accordingly, we hold that the trial court’s conclusion, as a matter of law,
that the documents are unambiguous, was clear error. For the reasons outlined herein, we
hold that the language used in the Restrictions is ambiguous as to the location of the
easement. The ambiguity inherent in the relevant easement-establishing documents
necessitates further review of the evidence elicited in this matter regarding the
circumstances surrounding the creation of the easement in the 2002 documents.

B.
1.
When a written document creating an easement is held to be ambiguous, a court
may look to the circumstances under which the easement was created to making a finding

of fact as to the meaning of the declaration. See Adkins v. Bluegrass Estates, Inc., 360

-26-
S.W.3d 404, 411 (Tenn. Ct. App. 2011) (citations omitted). Parol evidence may be used
to determine the meaning of the documents; a factfinder may use extrinsic or parol
evidence, such as the parties’ course of conduct and statements, to guide the court in
construing the contract. Allstate Ins. Co.,195 S.W.3d at 612. The intent of the
contracting parties at the time of executing the agreement governs. Planters Gin Co. v.
Fed. Compress & Warehouse Co., Inc., 78 S.W.3d at 890. We therefore look to the
evidence elicited at trial regarding the circumstances under which the Restrictions and
referenced plat were created in order to ascertain the intended location of the
subdivision’s easement.

Again, the events relevant to our present inquiry occurred in 2002. On April 4,
2002, the “recorded plat of said subdivision,” referenced in the Restrictions, was created
by the surveyor, Mr. Leggins. On April 10, 2002, the Restrictions were executed by Ms.
Daniel. The Restrictions are referenced on the recorded plat in the vicinity map, as seen
in Figure 2. On May 8, 2002, the plat was certified and adopted by Ms. Daniel.
Therefore, we look to the testimony elicited at trial regarding the 2002 creation of the
subdivision’s easement for clarity on what is the “private joint permanent easement as the
same is shown on the recorded plat of said subdivision.”

As outlined infra, Mr. Leggins personally surveyed Mrs. Daniel’s real property
and created the subdivision’s plat. His testimony is therefore especially compelling
regarding the intended location of the subdivision’s easement. He testified that the
subdivision originally consisted of eight tracts intended for sale. The intended access road
to the tracts, i.e. the joint permanent private easement, was the Loop Access Road, which
later came to be known as “Daniel Road.” The Loop Access Road did not have a name
when the subdivision was platted; it was simply referred to as the subdivision’s easement.
He clarified that Kudzu Drive did have a name at the subdivision’s conception, hence its
independent denomination on the plat’s vicinity map. He further clarified that Kudzu
Drive was independently named, because it was not a part of the subdivision’s access
road; it was solely Mrs. Daniel’s driveway.

Mr. Leggins also explained that only the intended access road was graded and
graveled. Kudzu Drive was not, which is further supported by the testimony of several
witnesses indicating that Kudzu Drive is rough terrain. Only the Loop Access Road was
graded and graveled, because it was the only access road. Mr. Leggins further clarified
why the denominated Kudzu Drive looks the same width on the plat as the Loop Access
Road. He testified that, when he was drafting the plat, he surmised that Mrs. Daniel might
want to sell her residential tract at a later date; he platted “Kudzu Drive” as 50-feet wide,
the same width as the actual graded and graveled subdivision access road, so that it would
be consistent with applicable law and she would not have to have another plat drawn.
Significantly, Mr. Leggins’ testimony and recounting of the events surrounding the
inception of the subdivision is consistent with Mrs. Daniels’ testimony.

pis
Based on the foregoing, we hold that, when Ms. Daniel created the 2002
Restrictions and recorded the 2002 survey plat, the joint permanent private easement
consisted only of the Loop Access Road. The disputed Kudzu Drive was not included,
and was not intended to be included, in the subdivision’s easement.

However, our analysis does not end here, because Mrs. Daniel eventually sold
tracts 9 and 10. We continue with a review of the language used in the 2005 Homeowners
Easement Deed that granted the subdivision’s homeowners association the easement. We
consider whether or not Mrs. Daniel intended to expound upon the original easement, and
to further grant, upon her execution of the Homeowners Easement Deed, the independent
Kudzu Drive to the homeowner’s association for purpose of accessing the two additional
subdivision tracts.

2.

Quoted infra, and reproduced below for the reader’s convenience is the relevant
portion of the 2005 Homeowners Easement Deed, executed by Mrs. Daniel, describing
the easement transferred to the homeowner’s association:

...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.

Again, “Plat Cabinet B, Page 142 in the Register’s Office for Roane County, Tennessee”
does not indicate what is “more commonly known as Daniel Road;” it only indicates
Kudzu Drive. The trial court dispelled with the ambiguity in the Homeowners Easement
Deed’s reference to Daniel Road, by holding that the reference:

there as to the road as shown on the plat, as being more
commonly known as Daniel Road, as a_ superfluous,
unnecessary descriptive term which does not in any way
affect the division of the road as shown on the plat between
the area that’s marked in pink and the area that’s marked in
yellow.

The trial court improperly determined that the language used in the Homeowners
Easement Deed granting a specified road — Daniel Road — to the homeowner’s
association is “superfluous.” In construing contracts, we are to give effect to all the
language included therein, as the law of contract interpretation militates against
interpreting a contract in a way that renders a provision superfluous. Crossville Med.

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Oncology, P.C. v. Glenwood Sys., LLC, 610 F. App’x 464, 468 (6th Cir. 2015) (internal
quotations and citations omitted). The specific reference to a road name is clearly
intended to elucidate the precise road included in the grant; likewise, it also elucidates
what is to be excluded. This reasoning is in accordance with the common-sense notion
that roads are denominated in order to differentiate one from the other.

When determining the easement parameters granted to the homeowner’s
association, in the Homeowners Easement Deed, the trial court also erred by concluding
that the name designation given to the roads in the subdivision “doesn’t matter:”

...But the fact of the matter is that it doesn’t matter what
name appears on these roads because the road as shown on
the map, regardless of its name, is the road that's dedicated to
the people who own lots in the subdivision. And where it says
‘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’ -- and it doesn’t refer to the road
there by name at all, so that we could give, in essence, any
name to that, whether it’s Kudzu Drive or Daniels Drive or
whatever, and that wouldn’t change the effect of the recorded
documents, the documents that give legal effect to this
subdivision. It wouldn’t change anything by how we refer to
that insofar as the foundational documents are concerned.

By so holding, the trial court sidestepped an issue essential to resolving the present
dispute and improperly rendered significant language in the relevant documents null.

It is abundantly evident from our above discussion, a review of the relevant
documents, and the testimony provided at trial, that the name designation given to the
roads in the subdivision does matter. The Homeowners Easement Deed refers to the
easement granted therein by a specific subdivision road name — Daniel Road. As noted in
the previous section of this opinion, when we look at the plat, it does not denominate
Daniel Road in the subdivision, but it does denominate a Kudzu Drive. It follows that,
whatever is Daniel Road on the referenced plat, must necessarily exclude what is
identified as Kudzu Drive on the plat.

The ambiguity surrounding the parameters of “Daniel Road” is clarified by
testimony elicited at trial. The most compelling testimony came from Mrs. Daniel, the
developer and previous owner of all the tracts, who personally named Kudzu Drive. She
testified that Kudzu Drive and Daniel Road are separate roads. She testified that Kudzu
Drive is a part of tract 9, and “never was called Daniel Road.” Again, she clarified that
what is now known as Kudzu Drive is tract 9’s driveway, which she personally named.

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In addition, Mr. Leggins clarified that the Loop Access Road acquired its road
name after the plat was created, which is why it is not labeled on the recorded plat.
Kudzu Drive is independent and pre-dates the subdivision, which is why it is labeled on
the recorded plat. He testified that the road known as Kudzu Drive “was not part of the
subdivision, per se, and was not an access.”

In addition, all non-plaintiff neighbors testified that Kudzu Drive and Daniel Road
do not reference a single subdivision road. All non-plaintiff neighbors testified that the
Disputed Drive is an independent road called Kudzu Drive, as seen on the plat. Lastly,
the vicinity map on the recorded plat specifically denominates the independent Kudzu
Drive precisely where all of the above-noted witnesses testified it is independently
located.

Based on the foregoing, we hold that the evidence overwhelmingly preponderates
in favor of Kudzu Drive being a drive independent of Daniel Road. A fortiori, a grant to
the homeowner’s association of Daniel Road necessarily excludes Kudzu Drive.

V.

In sum, and to ensure clarity in the resolution of this matter, we hold that the joint
permanent private easement in Daniels Estates Subdivision consists of the Loop Access
Road shown on the recorded plat; it is named Daniel Road. Daniel Road begins in the
western portion of the subdivision on U.S. Highway 70 and proceeds through the
subdivision into a closed loop, rejoining the original road, and ultimately returning to the
same location as Daniel Road’s origin. The homeowner’s association, by virtue of the
grant contained in the Homeowners Easement Deed, holds title only to Daniel Road as
the easement for the use of the applicable subdivision tracts. Specifically, the
subdivision’s easement does not include the Disputed Drive, named Kudzu Drive, which
is indicated on Figure 1 with interlocking “X” marks and denominated on the
subdivision’s recorded plat.

We hold that the disputed interlocking “X” marked drive, as seen on Figure 1 in
this opinion, is named Kudzu Drive. Kudzu Drive runs north from U.S. Highway 70 to its
intersection with Daniel Road, as defined in this opinion. Kudzu Drive is not a public
road. Kudzu Drive is not a part of, or subject to, the Daniels Estates Subdivision’s
easement. Kudzu Drive is situated exclusively on tract 9 of the Daniels Estates
Subdivision; it is included in the real property that comprises tract 9. Defendants
presently have title to Kudzu Drive by virtue of their ownership of the deed to tract 9.
Defendants’ ownership of Kudzu Drive does not preclude their right to access and use
Daniel Road.

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It is important to remember that real property owners have all the rights incident or
necessary for proper enjoyment of their land; as the Supreme Court has stated, a
“property owner’s right to own, use, and enjoy private property is a fundamental right:”

[a]s such, this Court has held that: every proprietor of land,
where not restrained by covenant or custom, has the entire
dominion of the soil and the space above and below to any
extent he may choose to occupy it, and in this occupation he
may use his land according to his own judgment, without
being answerable for the consequences to an adjoining owner,
unless by such occupation he either intentionally or for want
of reasonable care and diligence inflicts upon him an injury.

Hughes v. New Life Dev. Corp., 387 S.W.3d 453, 474 (Tenn. 2012) (internal citations
omitted).

To prevent further disputes, we further clarify that, based on our holding, the real
property comprising tract 10 in Daniels Estates Subdivision does not abut Daniel Road.

We affirm the trial court’s striking of the 2016 quitclaim deed executed by Mrs.
Daniel to the Coles. We hold that the deed is properly stricken, because it is redundant
based on our holding, ie. the property deeded to the Coles was already the Coles’
property based upon their 2013 purchase of the entirety of tract 9. In addition, our
holding renders redundant any post-2002 document and/or deed purporting to grant
Kudzu Drive or any easement found thereon to the owner of tract 9.

Accordingly, based on our holding, we also reverse the trial court’s monetary
awards to all of the plaintiffs.

VI.

The judgment of the trial court, including its awards of damages, are reversed.
Costs on appeal and at the trial court level are assessed against the appellees Cathy
Rakestraw, Clair James Rakestraw, Jr., Eric S. Lovett, Michelle A. Lovett, James P.
Goodman, Ruth A. Goodman, Matthew F. Berry, Deanna Berry, Ralph Salas, and Gisela
Salas. This case is remanded to the trial court for enforcement of our judgment.

 

CHARLES D. SUSANO, JR., JUDGE

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