                 IN THE COURT OF APPEALS OF TENNESSEE
                                                                             FILED
                                   AT KNOXVILLE                              May 21, 1999

                                                                          Cecil Crowson, Jr.
                                                                          Appellate C ourt
                                                                              Clerk



RUTH L. WILLIAMS,                          ) C/A NO. 03101-9807-CH-00239
                                           )
       Plaintiff-A ppellant,               ) LOUDON CHANCERY
                                           )
v.                                         ) HON. F RANK V. WILL IAMS, III
                                           ) CHANCELLOR
JAMES BOTTS and wife, BRENDA               )
BOTTS,                                     ) AFFIRMED
                                           ) AND
       Defendants-Appellees.               ) REMANDED




CHR IS RAL LS, M aryville, for Plaintif f-Appe llant.

REX A. D ALE, JOHN SON & D ALE, Lenoir City, for Defendants-Appellees.




                                     O P I N IO N


                                                          Franks, J.




              In this action, the issue is the width of plaintiff’s right-of-way across a

portion of defendants’ property. The Trial Court determined the width to be 25 feet

and the plaintiff has appealed.

              Plaintiff Ruth Williams and her husband Murray, now deceased, owned

a tract of land in Loudo n Coun ty. In 1975, the W illiams swap ped a tract o f land with

C.L. Williams, to gain access to Highway 321 (formerly Highway 95). The land

acquired b y C.L. William s is now o wned b y the Creeks. It is u ncontested that Ruth

Williams possesses a sixty-foot wide easement running from the northwest corner of

the Creek property to Highway 321.
               On No vember 1 1, 1975, pla intiff and h er late husba nd sold pa rt of their

property to defendant James Botts. The deed provided a twenty-five-foot wide

easemen t beginning at the northw est corner o f the prope rty and runnin g east to

Highway 321. On April 6, 1978, the Williams sold a tract to Larry and Robin Young,

and by a deed dated June 30, 1978, the Williams granted the Youngs a twenty-five-

foot ea semen t extend ing fro m the so uthwe st corne r of the p roperty to Highw ay 321.

On January 15, 1979, the Williams sold another tract to Carroll Price and granted a

twenty-five-f oot easem ent extend ing from th e southw est corner o f the prope rty to

Highway 321. Murray Williams died in 1979, and James Botts eventually acquired

both Price a nd You ngs’ tracts. B otts purcha sed the tract w hich is the su bject of this

dispute from Ruth Williams in August 1994. Both parties signed a correction deed on

December 15, 1994, to clarify a matter not here in dispute. Neither the original

warra nty deed nor the correct ion dee d men tions an y easeme nt.

               The parties stipulated that Loudon County requires a fifty-foot wide

strip to co nsider th e land f or dedi cation a s a coun ty road.

               This action was filed in 1997, alleging that the plaintiff possessed a

sixty-foot easement, and sought reformation of the two deeds to reflect the sixty-foot

ease men t. She alle ged that t he omiss ion w as ba sed o n mu tual m istak e or a ltern ative ly,

a unilate ral mista ke indu ced by th e Botts ’ fraud ulent co nduct.

               Upo n tria l, the Cha ncel lor held th at Ru th W illiam s pos sessed a s ixty-

foot ea semen t extend ing fro m Hig hway 3 21 to th e north west co rner of the Cre ek tract,

and a twenty-five-foot wide easement thereafter across the Botts’ tracts.

               “[R]eview of findings of fact by the trial court in civil actions shall be

de novo upon the record of the trial court, accompanied by a presumption of the

correctness of the finding, unless the preponderance of the evidence is otherwise.”

T.R.A.P. 13(d). The same presumption does not apply to conclusions of law.


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               The plaintiff contends that the Trial Court erred in not recognizing and

invoking James Botts’ judicial admission that the plaintiff possessed a fifty-foot

easem ent exte nding f rom the southw est corn er of the Youn g tract to Highw ay 321.

All of th e deed s for the Price an d You ng tracts refer to a twen ty-five-fo ot easem ent.

James Botts testified that he “assu med” this easeme nt extended to the northe rn

boundary of his twenty-five-foot easement associated with one of the tracts he had

purcha sed fro m the W illiams. H e stated “ I think it’s side by sid e.”

               The sworn testimony at trial of a party to a case is a conclusive

admission , binding up on him o r her in the disp osition of the case, unless there is

credible evidence of other facts which would negate the effect of the fact admitted by

a party. Osborne v. Hartford Accident & Indem. Co., 476 S.W.2d 256 (Tenn.App.

1971). In th is case, the T rial Court ex amined th e deeds fo r the Price an d Youn g tracts

and determined that the proper boundary line for a portion of the Price and Young

tract s extended in to the mid dle o f the purp orted six ty-foot ea sement. A ccor ding ly,

the Chancellor found credible evidence to support his finding of a single twenty-five-

foot wid e easeme nt. Botts’ testim ony was eq uivocal an d is negated by the eviden ce to

the contrary. The evidence d oes not preponde rate against the Trial Court’s

determ ination o n this issu e.

               The plaintiff also argues that the Trial Court erred in ruling against her

on her claim of mutual mistake or unilateral mistake induced by fraud or concealment

of material facts. In order to reform a written instrument for mistake, there must have

been either a mutual m istake, or a mistake of one p arty influenced by the other’s

fraud. McMillin v. Great S. Corp., 480 S.W.2d 152 (Tenn.App. 1972). A “mistake”

is an act which would not have been done, or an omission which would not have

occurred, but from ignorance, forgetfulness, inadvertence, mental incompetence,

surprise , misplac ed con fidenc e, or imp osition, a nd it mu st be mu tual or f raudul ent.


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Town of McMinnville v. Rhea, 316 S .W.2d 46 (Te nn.Ap p. 1958 ).

                Plaintiff argues that the parties’ lack of discussion concerning the

easement, and the fa ilure of the deeds to me ntion it is evidence that the parties were

operating u nder a mu tual mistake . The Trial C ourt, in findin g that plaintiff failed to

prove he r claim, said: “T here’s bee n no show ing of a m utual mistak e here. M r. Botts

clearly intended the 25-foot easement when the last deeds were prepared . . . and I

think those deeds are valid and reflect the agreement of the parties exactly as they

exist there . . . “.

                The ev idence prepon derates in favo r of the T rial Cou rt’s conc lusion.

James Botts testified that he intended for the plaintiff to have only a twenty-five-foot

ease men t. He testif ied th at the only e asem ent th e par ties e ver d iscussed was twenty-

five feet wide. Additionally, the plaintiff did not mention the sixty-foot easement at

the closing. The surveys done for both the original warranty deed and the correction

deed depict the northern edge of the twen ty-five-foot easement as the sou thern

bounda ry of the adjoin ing tract.

                The Trial Court also found against the plaintiff on her claim of unilateral

mistake ind uced by frau d. He said:

                There’s been no misrepresentation made by the Botts to her of any
                material fact, been no concealment on the part of the Botts of any
                material fact that Ms. Williams was entitled to know about. There was
                no reliance on her part of any misrepresentation of a material fact, no
                resulting damage to her because of any representation made by the
                defenda nts or any frau dulent con cealment o f a fact that th e defend ants
                had a duty to disclose to her.

                Again, the evidenc e does not prepon derate against the Trial Cou rt’s

findings. The Trial Court found that although Murray Williams may have once

intended a sixty-foot easement, the proof was insufficient to find that James Botts was

ever aware of the deceased’s intention. Additionally, the Trial Court noted that the

plaintiff was intelligent and articulate and did not appear to be under the control or


                                               4
influence of Botts. He also found that plaintiff was not confused or coerced at the

closing. T he te stimony of the attor ney w ho handled th e clo sing and his secre tary,

suppo rted the c onclus ion reac hed by th e Trial C ourt.

               Finally, plaintiff co ntends that th e defend ants defrau ded her. Sh e lists

five “bad ges of fra ud” wh ich she claim s are the bas is of this frau d. As prev iously

stated, the Trial Court found no fraud practiced by the defendants, and made extensive

findings on the issue of fraud and the plaintiff’s mental condition. The evidence does

not pre ponde rate aga inst the T rial Cou rt’s find ings. T.R .A.P. R ule 13( d).

               The judgment of the Trial Court is affirmed and the cause remanded

with the co st of the app eal assessed to the appe llant.




                                              __________________________
                                              Herschel P. Franks, J.


CONCUR:




___________________________
Houston M. Godd ard, P.J.




___________________________
Charles D. Susano, Jr., J.




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