                                                                                           08/10/2017
                IN THE COURT OF APPEALS OF TENNESSEE
                             AT JACKSON
                                  June 29, 2017 Session

     BILLY BUTLER, ET AL. v. MALVIN CARVIN PITTS, JR., ET AL.

                Appeal from the Chancery Court for Haywood County
                   No. 2014-CH-46 George R. Ellis, Chancellor
                      ___________________________________

                           No. W2016-01674-COA-R3-CV
                       ___________________________________


This is the second appeal of this easement case. Appellants, the servient land owners,
appeal the trial court’s award of a monetary judgment in favor of Appellees, the owners
of the dominant estate. On remand, the parties agreed to have the trial court determine
the precise location of the easement, but the trial court refused to hear the issue, and also
refused to allow Appellants to make an offer of proof. We vacate the damage award due
to the trial court’s failure to make sufficient findings. We also conclude that the trial
court erred by refusing to determine the location of the easement. Vacated and
remanded.

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

KENNY ARMSTRONG, J., delivered the opinion of the Court, in which J. STEVEN
STAFFORD, P.J., W.S., and BRANDON O. GIBSON, J., joined.

James S. Haywood, Jr., Brownsville, Tennessee, and Christopher N. Davis, Alamo,
Tennessee, for the appellants, Malvin Carvin Pitts, Jr., Malvin Carvin Pitts, III, and
Marcia Lee Pitts.

Pat H. Mann and Joshua B. Shearon, Brownsville, Tennessee, for the appellees, Stephen
Leath and Billy Butler.


                                        OPINION

                         I.     Factual and Procedural History

       This is the second appeal of this case. Members of the James family, parties in the
previous appeal, owned several tracts of farmland in rural Haywood County. Butler v.
Pitts, No. W2015-01124-COA-R3-CV, 2016 WL 561078, at *1 (Tenn. Ct. App. Feb. 12,
2016) (“Butler I”). The Appellees, in the current appeal, are members of a group of
hunters who leased a portion of the James’ land for hunting purposes. In 2004, the
hunters purchased the land they had been leasing from the James family. In addition to
conveying forty-three acres to the hunters, the James family granted the hunters a thirty-
foot easement for ingress and egress over an adjacent tract of land they owned. This
easement was recorded on March 1, 2004, in the office of the Haywood County Register
of Deeds; it provides:

      For good and valuable consideration, receipt of which, is hereby
      acknowledged, we, William James and Ewell James do hereby grant unto
      Billy Butler, Stephen Leath, Kenneth McBride and Cecil Clint Dixon a
      thirty (30) foot easement for ingress and egress to a 43-acre tract known in
      the property assessor’s office of Haywood County, Tennessee as Map 20,
      Parcel 38 over and across presently existing roadway as shown in a yellow
      ink on the map attached hereto.

       In 2013, approximately nine years after the easement was recorded, Malvin Carvin
Pitts, Jr., Marcia Lee Pitts, and Malvin Carvin Pitts, III, (together, “Appellants”)
purchased, from the James family, the property that was subject to the hunters’ easement.
Prior to their purchase, Appellants had leased and actively farmed the same land for a
number of years. Appellants hired a closing attorney to perform a title examination and
to draft the deed. Although, as noted above, the hunters’ easement was recorded,
Appellants’ closing attorney did not reference the recorded easement in the warranty deed
conveying the land to Appellants. Appellants’ deed, recorded on January 29, 2014,
contains the following language:

      We covenant with the said Malvin Carvin Pitts, Jr., Marcia Lee Pitts and
      Malvin Carvin Pitts, III, that we are lawfully seized and possessed of said
      real estate; that we have a good and lawful right to sell and convey the
      same; that the same is unencumbered; and that we will forever warrant and
      defend the title thereto against the lawful claims of all persons
      whomsoever.

       Some months after their purchase, Appellants made substantive changes to the
existing easement, blocking the hunters’ ingress and egress to their property.
Consequently, on July 8, 2014, the hunters filed a complaint against the Appellants,
alleging that the Appellants “intentionally removed the culvert at the end of the easement
where it adjoined the county road, plowed up the road and planted soybeans on the
roadway easement.” The hunters further alleged that Appellants’ actions had denied
them use of the easement. The hunters asked the trial court to order the Appellants to re-
open the easement and to restore it to its original condition. Additionally, they asked for
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damages, both compensatory and punitive, attorneys’ fees, and court costs. In their
answer, Appellants admitted that the hunters were unable to access their land, but denied
the existence of such easement across their property.

       On September 10, 2014, Appellants filed a third-party complaint against the James
family, alleging that they had breached the warranty deed issued to the Appellants at the
time of purchase. Appellants sought to recover any loss of property and all sums, if any,
that might be adjudged against them in the hunters’ lawsuit. On January 29, 2015, the
James family filed an answer to the third-party complaint, wherein they denied any
breach of the warranty deed. The James family asserted that there was a valid easement,
which was properly recorded in Deed Book 263, Page 384, in the Register’s Office of
Haywood County, Tennessee and contained not only express language, but also a
geographical depiction of the easement. Appellants argued that the easement was
ineffective because the description of the easement was too vague. Appellants further
asserted they had no actual knowledge of the easement. The trial court, relying on the
recorded easement, found that there was no genuine issue as to any material fact and
granted summary judgment in favor of the James family. The trial court’s ruling on the
motion for summary judgment on the third-party complaint was affirmed in Butler I.

        After Butler I was remanded, the trial court held a damages hearing on the
original complaint. The parties agreed that, in addition to determining damages, the trial
court should determine the exact location of the easement. The trial court, relying on
what it perceived to be the directive from this Court, refused to hear any evidence
regarding the location of the easement and further refused Appellants’ offer of proof on
this issue. The trial court’s order consists of one paragraph, which states:

      [Appellees] are awarded a judgment against the [Appellants] in the amount
      of $9,296.00 which includes $3,226.00 for damage to trees testified to by
      Barrow Taylor who observed the trees on May 20, 2016 and has worked for
      the Tennessee Department of Forestry for 36 years; $2,070.00 for loss of
      land rent for the 13.8 tillable acres and $4,000.00 for the loss of hunting on
      the farm based on the testimony of John Butler and the costs of this cause
      for which execution may issue.


Appellants appeal.

                                  II.     Issues

      Appellants present the following issues on appeal as stated in their brief:



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       1. Whether [ ] the yellow line drawn upon a tax map filed as being the
          description for the easement, is a valid and proper description according to the
          law.

       2. Whether [ ] the Chancellor should have taken up the issue presented by both
          parties as to where the alleged easement was located.

       3. Whether [ ] the damages assessed by the Chancellor against the Appellants
          were appropriate.

                                  III.   Analysis

        In this appeal, Appellants question whether the yellow line drawn on the tax map,
for the subject property, coupled with a description of the easement, is legally valid. This
Court’s previous ruling in Butler I constitutes the law of the case regarding the validity
of the easement. The Tennessee Supreme Court has described the “law of the case”
doctrine as follows:

       An appellate court’s final decision in a case establishes the “law of the
       case” when a case is remanded for further proceedings. This “law of the
       case” is binding on the trial court during the remanded proceedings and is
       also binding on the appellate courts should a second appeal be taken after
       the trial court enters a judgment in response to the remand order.

Memphis Publ'g Co. v. Tenn. Petroleum Underground Storage Tank Bd., 975 S.W.2d
303, 306 (Tenn. 1998). The “law of the case” doctrine is neither a constitutional mandate
nor an inflexible limit on the adjudicatory power of the courts. Instead, it is “a
longstanding discretionary rule of judicial practice,” Memphis Publ'g Co. 975 S.W.2d at
306, reflecting the common sense recognition that issues previously litigated and decided
by a court of competent jurisdiction need not be revisited. In re Estate of Boote, 256
S.W.3d 402, 413 (Tenn. Ct. App. 2007); Ladd ex rel. Ladd v. Honda Motor Co., 939
S.W.2d 83, 90 (Tenn. Ct. App. 1996). Thus, except in certain limited situations, the trial
court cannot revisit an issue decided in a prior appeal in the same case. State ex rel.
Dep't of Transp. v. Thomas, No. W2013-02082-COA-R3-CV, 2014 WL 6992126, at *6
(Tenn. Ct. App. Dec. 11, 2014) (citing Memphis Publ'g Co., 975 S.W.2d at 306).

       In Butler I, we held that “the granting language in the easement specifically
references the county, map, and parcel of the dominant estate, and attaches a highlighted
map as an additional description of the location of the easement.” Consequently,
Appellants’ argument that the easement is void for uncertainty is without merit. Butler I,
2016 WL 561078, at *5. The validity of the easement has been previously established as
the law of the case; therefore, we need not address the issue further here.

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       Concerning the location of the easement, Appellants argue that the trial court erred
in declining to allow proof and in failing to determine the precise location of the
easement. Appellees agree with Appellants, arguing that it is necessary for the trial court
to determine the precise location of the easement because Appellants “have virtually
obliterated any evidence of the roadway over which the easement was originally
granted.” From the record, attorneys for both parties attempted to introduce evidence and
testimony as to the location of the easement, but the trial court refused to hear the proof.
In response to the parties’ request to put on proof, the trial court stated:

       [N]obody prayed for a dispute as to what is the easement, and we’re just
       finishing up this case. If there’s a new issue, there’s a new issue.
       Apparently it sounds like there is, but that issue didn’t go to the Court of
       Appeals.
                                           ***

       Well, I think we’ve got to limit it today to damages.

                                            ***

       I want to do what I think the Court of Appeals has ordered me to do, and I
       don’t think I can do anymore even though I’m persuaded that as a practical
       matter – but I think I’m limited on what this Court can do from a mandate
       from the Court of Appeals.

                                            ***

       Trial Court:                So I think we’re on damages.

       Counsel for Appellees:      You want to hear damages today?

       Trial Court:                Yes

       Counsel for Appellants:     Your Honor, could we do an offer of proof then
                                   as far as –

       Trial Court:                No. I am not going to defy what I see as a
                                   directive from the Court of Appeals. I really
                                   don’t think I can do that. So this has come back
                                   with the issue of dam --- if there are damages,
                                   what are the damages?

In Butler I, the only issues before this Court pertained to the grant of summary judgment,
in favor of the James family, as third-party defendants. This Court simply remanded the
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case to the trial court “for such further proceedings as may be necessary and are
consistent with this opinion.” Butler I, 2016 WL 561078, at *7 (emphasis added).
Although we concluded that the easement was valid, we did not determine its precise
location. Nothing in our Butler I holding precludes the trial court from hearing evidence
regarding the location of the easement.

       Rule 15.02 of the Tennessee Rules of Civil Procedure states that “[w]hen issues
not raised by the pleadings are tried by express or implied consent of the parties, they
shall be treated in all respects as if they had been raised in the pleadings.” Tenn. R. Civ.
P. 15.02. Rule 15.02 seeks to place substance over form. Zack Cheek Builders, Inc. v.
McLeod, 597 S.W.2d 888, 890 (Tenn. 1980). Rule 15.02 allows trial of an unpled issue
by express or implied consent of an adverse party followed by amendment of the
pleadings to encompass the issue. Tenn. R. Civ. P. 15.02; Zack Cheek Builders, 597
S.W.2d 890. A party’s proof nevertheless remains confined to the pleadings unless the
adverse party impliedly or expressly consents to consideration of the unpled issue at trial.
Randolph v. Meduri, 416 S.W.3d 378, 384-85 (Tenn. Ct. App. 2011) (citing Hiller v.
Hailey, 915 S.W.2d 800, 804-05 (Tenn. Ct. App. 1995)). Here, the parties were in
agreement about the need to determine the precise location of the easement. Under
Tennessee Rule of Civil Procedure 15.02, the trial court should have treated the issue
concerning determination of the easement’s location “as if [it] had been raised in the
pleadings.” Tenn. R. Civ. P. 15.02.

       In addition to refusing to address the location issue, the trial court also denied
Appellants’ offer of proof on this question. Generally, when an evidentiary ruling results
in the exclusion of evidence, courts must allow an offer of proof. Taylor v. State, 443
S.W.3d 80, 84 (Tenn. 2014) (citing State v. Torres, 82 S.W.3d 236, 251 (Tenn. 2002));
see also Tenn. R. Evid. 103(a)(2) (providing that error may not be predicated upon a
ruling which excludes evidence unless “a substantial right of the party is affected” and
“the substance of the evidence and the specific evidentiary basis supporting admission
were made known to the court by offer or were apparent from the context”). “An offer of
proof serves two primary purposes: (1) informing the trial court about the proof the party
is seeking to offer; and (2) creating a record so that an appellate court can review the trial
court’s decision.” Alley v. State, 882 S.W.2d 810, 815 (Tenn. Crim. App. 1994)). A trial
court commits error by refusing a request to make an offer of proof unless “it is obvious
from the record that the proffered evidence could, under no circumstances, be relevant to
the issues.” Taylor v. State, 443 S.W.3d 80, 84 (Tenn. 2014)(quoting Alley, 882 S.W.2d
at 815). Here, an offer of proof was appropriate and helpful for appellate review.

      Regarding the damages awarded, we observe that the trial court’s order is only one
paragraph long. It contains neither a statement of facts, nor conclusions of law, see infra.
Tennessee Rule of Civil Procedure 52.01 provides, in relevant part:

       In all actions tried upon the facts without a jury, the court shall find the
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       facts specially and shall state separately its conclusions of law and direct
       the entry of the appropriate judgment.

Tenn. R. Civ. P. 52.01. “No principle is better known than that which states that a Court
speaks through its orders and decrees entered upon the minutes of the Court.” Palmer v.
Palmer, 562 S.W.2d 833, 837 (Tenn. Ct. App. 1977). There is no bright-line test by
which to assess the sufficiency of factual findings, but “the findings of fact must include
as much of the subsidiary facts as is necessary to disclose to the reviewing court the steps
by which the trial court reached its ultimate conclusion on each factual issue.” Lovlace v.
Copley, 418 S.W.3d 1, 35 (Tenn. 2013). This requirement is not a “mere technicality.”
Roney v. Nordhaus, No. M2014-02496-COA-R3-CV, 2015 WL 9594638, at *1 (Tenn.
Ct. App. Dec. 30, 2015); Hardin v. Hardin, No. W2012-00273-COA-R3-CV, 2012 WL
6727533, at *3 (Tenn. Ct. App. Dec. 27, 2012). Findings and conclusions facilitate
appellate review by affording a reviewing court a clear understanding of the basis of a
trial court’s decision. Hardin, 2012 WL 6727533, at *5; In re K.H., No. W2008-01144-
COA-R3-PT, 2009 WL 1362314, at *8 (Tenn. Ct. App. May 15, 2009). “Without such
findings and conclusions, this Court is left to wonder on what basis the court reached its
ultimate decision.” In re K.H., 2009 WL 1362314, at *8. Given the lack of findings and
conclusions of law in the trial court’s order, this Court has no basis on which to review
the trial court’s decision regarding damages. Accordingly, we vacate the judgment and
remand for such further proceedings as may be necessary. Our holding in this matter
does not preclude the trial court from allowing the parties to present additional proof on
remand. On remand, the trial court should ensure that any subsequent orders comply
with Tennessee Rule of Civil Procedure 52.01.

                                IV.    Conclusion

       For the foregoing reasons, we vacate the trial court’s order. The case is remanded
for such further proceedings as are necessary and consistent with this opinion. Costs of
the appeal are taxed to the Appellants, Malvin Carvin Pitts, Jr., Malvin Carvin Pitts, III,
Marcia Lee Pitts, and their surety, for all of which execution may issue if necessary.



                                                 _________________________________
                                                 KENNY ARMSTRONG, JUDGE




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