                                                                                        06/09/2017




               IN THE COURT OF APPEALS OF TENNESSEE
                          AT KNOXVILLE
                               January 25, 2017 Session

  STATE EX REL. APPALOOSA BAY, LLC ET AL. v. JOHNSON COUNTY,
                      TENNESSEE, ET AL.

                Appeal from the Chancery Court for Johnson County
                  Nos. 6948 & 7146   John C. Rambo, Chancellor


                            No. E2016-01163-COA-R3-CV


Two owners of separate lots in a planned residential subdivision of twenty lots brought
this action against the Johnson County Regional Planning Commission and several state
entities after the subdivision’s developer went into bankruptcy and development of the
subdivision was halted. When the developer had earlier posted a performance bond
securing the completion of the subdivision’s infrastructure, the planning commission had
approved the subdivision plat, although infrastructure, including roads and utilities, had
not been completed. After developer’s bankruptcy, the State of Tennessee bought the
land comprising all of the subdivision lots, except the two owned by the plaintiffs. All of
the remaining land in the intended subdivision, except for several other lots purchased by
individuals before the bankruptcy, is now part of the Doe Mountain Recreation Area —
an entity subsequently created by the State. Plaintiffs brought this action for breach of
contract between developer and the planning commission. Plaintiffs also asked the trial
court to issue a writ of mandamus compelling the county to complete the proposed
subdivision infrastructure. The trial court granted the defendants summary judgment.
The plaintiffs appeal. We affirm.

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

CHARLES D. SUSANO, JR., J., delivered the opinion of the court, in which FRANK G.
CLEMENT, JR., P.J., M.S., and THOMAS R. FRIERSON, II, J., joined.


Arthur M. Fowler and Arthur M. Fowler, III, Johnson City, Tennessee, for the appellants,
Appaloosa Bay, LLC, David Castillo, and Deborah Castillo.

Jeffrey M. Ward, Greeneville, Tennessee, for the appellees, Johnson County, Tennessee,
and Johnson County, Tennessee Regional Planning Commission.
Mona Butler Alderson, Mountain City, Tennessee, for the appellee, Doe Mountain
Recreation Authority.

Herbert H. Slatery III, Attorney General and Reporter, Andrée S. Blumstein, Solicitor
General, and Jay C. Ballard, Deputy Attorney General, Nashville, Tennessee, for the
appellee, Tennessee Department of Finance and Administration.


                                        OPINION

                                             I.

       In 2006, Doe Mountain Development Group, Inc. (developer) owned about 8,500
acres on Doe Mountain in Johnson County. Developer intended to build a private
residential subdivision known as Charter Ridge Club. Following the creation of a
subdivision plan and plat with twenty numbered lots, developer presented the plat for
final approval to the planning commission on August 14, 2006. According to plaintiffs,
at the time of the submission of the plat, the subdivision “consisted of stakes along a
rough-cut dirt road identifying the 20 lots.” There were no utilities. The approximately
three-mile road to the entrance of the proposed subdivision was a gravel and dirt road,
appropriately identified as “gravel road” on the plat. The lots varied in size, the smallest
being 1.32 acres, and the largest 2.96 acres. The total acreage of the twenty lots was
35.95 acres.

       The minutes of the planning commission meeting on August 14, 2006 state the
following:

              An estimate to construct the roads for this subdivision, and
              the 16,000 foot access road to it, was done . . . for $451,000.
              [Developer] proposed depositing $451,000 in the BB&T
              Bank in Johnson City to cover the cost of developing the
              roads. Final approval was granted subject to the cash deposit
              being executed, TDEC stamping the plat, and the other
              required signatures with staff’s recommendation.

The plat was recorded on September 13, 2006. The $451,000 performance bond was
deposited in escrow to secure the completion of the subdivision’s roads and utilities. On
January 17, 2007, plaintiff Appaloosa Bay, LLC purchased a 2.11 acre lot in the planned
subdivision. On February 15, 2008, plaintiffs David Castillo and Deborah Castillo

                                            -2-
purchased a 1.71 acre lot.1 On June 9, 2008, the planning commission voted to release
$150,000 of the money held in escrow, apparently for work on the roads. After this
expenditure, a second, revised escrow agreement in the amount of $301,000 was
executed on June 12, 2008.

        Developer defaulted on its loan obligations and the mortgagee foreclosed on the
property. The foreclosure did not affect plaintiffs’ lots. The subdivision’s infrastructure
was not completed. Developer filed for bankruptcy on August 24, 2011. On March 26,
2012, the bankruptcy court entered an order approving the bankruptcy plan for
liquidation of developer’s assets. As part of the plan, the property owned by developer
was sold to the Nature Conservancy, free and clear of encumbrances or claims. Nature
Conservancy then sold 8,000 acres on Doe Mountain to the State of Tennessee. The
State then transferred the property to the Doe Mountain Recreation Authority by way of a
quitclaim deed as part of the creation of that latter entity, which opened to the public in
November 2013. See Tenn. Code Ann. § 11-25-101 et seq. (2012) (The Doe Mountain
Recreation Authority Act of 2012).

        On December 10, 2012, the planning commission voted to declare developer and
the subdivision development to be in default. The commission further approved a motion
to “release the bond held in escrow to the State of Tennessee for the sole purpose of
infrastructure on Doe Mountain.” The amount held in escrow was $301,722.88, which
the planning commission directed to be released to the State. The State applied $300,000
of the funds toward the purchase of the property from the Nature Conservancy, and
returned the remainder to Johnson County.

       Plaintiffs brought this action,2 the essence of which is a request for the trial court
to issue a writ of mandamus requiring Johnson County

               to provide electricity to the [s]ubdivision, to provide water to
               the [s]ubdivision, and to complete the road within the
               [s]ubdivision in accordance with Defendant Johnson
               County’s Subdivision Regulations; and that [the] County
               accept the road from Harbin Hill Road located in Johnson
               County, Tennessee, to the [s]ubdivision as a public road.

Plaintiffs also asserted a claim for breach of contract, alleging that Johnson County
breached its duty “under the two Cash on Deposit Escrow Accounts . . . by failing to
       1
          Apparently four other lots were also sold to other individuals, but their owners are not
participants in this lawsuit.
        2
          Appaloosa Bay, LLC, and the Castillos originally each brought a separate action, but
the two were later consolidated in the trial court.
                                               -3-
apply money held in escrow to complete the construction of the [s]ubdivision and all
improvements thereto.” Named as defendants were Johnson County, the Doe Mountain
Recreation Authority, and the Tennessee Department of Finance and Administration.
The trial court later allowed plaintiffs to add the Johnson County Regional Planning
Commission as a defendant. Following discovery, the trial court granted defendants
summary judgment, holding that Johnson County had no obligation or duty that might be
enforced by a writ of mandamus. The trial court further held that plaintiffs were neither
parties nor third-party beneficiaries to developer’s performance bond agreement between
it and the planning commission. Plaintiffs timely filed a notice of appeal.

                                               II.

      Plaintiffs raise the following issues:

             1. Whether the trial court erred in holding that they do not
             have standing to sue as third-party beneficiaries under the
             subdivision performance bond agreement between the
             developer and the planning commission.

             2. Whether the trial court erred in denying plaintiffs’ request
             to issue a writ of mandamus requiring Johnson County to
             complete the construction and installation of the subdivision’s
             infrastructure.

             3. Whether the trial court erred in denying plaintiff’s request
             for a declaratory judgment that the gravel road from Harbin
             Hill road to the plaintiffs’ lots is a county road that must be
             maintained by Johnson County.

                                               III.

       We review a grant of summary judgment in accordance with the following
standard, as established by the Supreme Court:

             Summary judgment is appropriate when “the pleadings,
             depositions, answers to interrogatories, and admissions on
             file, together with the affidavits, if any, show that there is no
             genuine issue as to any material fact and that the moving
             party is entitled to a judgment as a matter of law.” Tenn. R.
             Civ. P. 56.04. We review a trial court’s ruling on a motion

                                               -4-
              for summary judgment de novo, without a presumption of
              correctness.

                                   *      *         *

              [I]n Tennessee, as in the federal system, when the moving
              party does not bear the burden of proof at trial, the moving
              party may satisfy its burden of production either (1) by
              affirmatively negating an essential element of the nonmoving
              party’s claim or (2) by demonstrating that the nonmoving
              party’s evidence at the summary judgment stage is
              insufficient to establish the nonmoving party’s claim or
              defense. . . . The nonmoving party must demonstrate the
              existence of specific facts in the record which could lead a
              rational trier of fact to find in favor of the nonmoving party.

Rye v. Women’s Care Ctr. of Memphis, MPLLC, 477 S.W.3d 235, 250, 264-65 (Tenn.
2015) (italics in original). In the instant case, there are no disputed material facts. Only
legal issues are before us on this de novo review.

                                              IV.

                                              A.

        The Johnson County Regional Planning Commission adopted subdivision
regulations under the authority of Tenn. Code Ann. § 13-3-401 et seq. (2011). Tenn.
Code Ann. § 13-3-402(a)(1) provides generally that no proposed subdivision plat within a
region governed by a regional planning commission “shall be filed for record or recorded
until it has been approved by such . . . commission, and such approval endorsed in
writing on the plat by the secretary of the commission or by another designee of the
regional planning commission.” At the time the complaint was filed, Tenn. Code Ann. §
13-3-403 provided, in pertinent part, as follows:

              (a) In exercising the powers granted to it by § 13-3-402, the
              regional planning commission shall adopt regulations
              governing the subdivision of land within its jurisdiction . . .

              (b) Such regulations may include requirements as to the
              extent to which and the manner in which roads shall be
              graded and improved, and water, sewer, and other utility
              mains, piping, connections or other facilities shall be installed
                                              -5-
              as a condition precedent to the approval of the plat. . . . Such
              regulations may provide that, in lieu of the completion of
              such work and installations previous to the final approval of a
              subdivision plat, the commission may accept a bond . . .
              providing for and securing to the public the actual
              construction and installations of such improvements and
              utilities. . . . The attorney for the county in which the
              subdivision is located is hereby granted the power and duty to
              enforce any such bond by all appropriate legal and equitable
              remedies, and moneys collected on such bond shall be paid
              into the state treasury and, upon the order of the regional
              planning commission, shall be applied to the construction and
              installation of the improvements and utilities. The regulations
              may provide, in lieu of the completion of the work previous
              to the final approval of a plat, for an assessment or other
              method whereby the county . . . is put in an assured position
              to do the work and make the installations at the cost of the
              owners of the property within the subdivision.3

(Footnote added.) The planning commission’s regulations provide in pertinent part as
follows:

              Every subdivision developer shall be required to grade and
              improve streets and alleys, and to install monuments, sewers,
              storm water inlets and water mains in accordance with
              specifications established by the Johnson County Regional
              Planning Commission.

                                    *       *         *

              No subdivision plat shall be approved by the Johnson County
              Planning Commission until all required improvements have
              been constructed in a satisfactory manner and approved by
              the Planning Commission with such approval endorsed in
              writing on the plat by the secretary of the Planning
              Commission. . . . In lieu of requiring the construction and
              completion of all improvements prior to final plat approval,
              the Planning Commission may, at its sole discretion, enter
       3
         Tenn. Code Ann. § 13-3-403 was extensively amended effective April 20, 2015. The
new amendments are not applicable to this case, being effective after the complaint in this case
was filed.
                                                -6-
             into a contract . . . with the subdivider to complete all
             required improvements.

      As already stated, the infrastructure for the proposed subdivision was far from
completed when the developer submitted the plat for the planning commission’s final
approval. The commission entered into a contract with developer whereby it deposited
$451,000 into an escrow account with BB&T bank to secure developer’s performance in
completing the required infrastructure. After $150,000 was released by the commission,
developer and commission executed another agreement, captioned “Cash on Deposit in
Escrow Account with Johnson County,” that similarly provides as follows in pertinent
part:

             [The developer] does hereby firmly bind itself . . . unto the
             Johnson County Regional Planning Commission and the State
             of Tennessee for and on behalf of Johnson County, Tennessee
             in the sum of $301,000.00 to secure the performance by the
             [developer] of its undertaking herein and the completion of
             said CHARTER RIDGE CLUB Subdivision and the
             construction of all streets, sidewalks, roads, curbs, utilities,
             and all other improvements . . .

             In order to secure this obligation, [developer] has currently on
             deposit with Johnson County Trustee, in a separate and
             identifiable fund, the above amount which [developer] hereby
             pledges, in lieu of performance bond or other security, to
             secure its obligations hereunder. Johnson County Trustee
             agrees to maintain said deposit as a separate account naming
             the Johnson County Regional Planning Commission and the
             State of Tennessee for and on behalf of Johnson County,
             Tennessee as sole beneficiaries and agrees that . . . said funds
             shall be subject to removal solely and exclusively upon
             demand by the [commission]. . . . [Developer]
             unconditionally agrees that in any event of [its] failure or
             refusal to complete the construction of said subdivision and
             all improvements thereto, . . . the [commission] by and
             through its duly elected Chairman may without pursuing
             [developer] withdraw upon demand said funds from said
             deposit for use in completing said construction and
             improvements at no cost to itself, Johnson County or the State
             of Tennessee.

                                           -7-
(Capitalization in original; italics added.)

      Plaintiffs argue that they are third-party beneficiaries of the above contract, and so
have standing to sue for specific performance. Regarding such a claim, the Supreme
Court has stated:

              Under the modern rule, third parties may enforce a contract if
              they are intended beneficiaries of the contract. See Willard v.
              Claborn, 220 Tenn. 501, 419 S.W.2d 168, 169 (1967); Moore
              Constr. Co. v. Clarksville Dept. of Elec., 707 S.W.2d 1, 9
              (Tenn. Ct. App. 1985). If, on the other hand, the benefit
              flowing to the third party is not intended, but is merely
              incidental, the third party acquires no right to enforce the
              contract. Willard, 419 S.W.2d at 170. In order to maintain
              an action as an intended beneficiary, a third party must show:
              “(1) a valid contract made upon sufficient consideration
              between the principal parties and (2) the clear intent to have
              the contract operate for the benefit of a third party.” First
              Tennessee Bank Nat’l Ass’n v. Thoroughbred Motor Cars,
              Inc., 932 S.W.2d 928, 930 (Tenn. Ct. App. 1996) (citing
              United American Bank of Memphis v. Gardner, 706 S.W.2d
              639, 641 (Tenn. Ct. App. 1985)). The evidence of intent to
              confer a benefit must be clear and direct[.]

Owner-Operator Indep. Drivers Assoc., Inc. v. Concord EFS, Inc., 59 S.W.3d 63, 68-69
(Tenn. 2001). The Owner-Operator Court set forth the following test:

              A third party is an intended third-party beneficiary of a
              contract, and thus is entitled to enforce the contract’s terms, if

              (1) The parties to the contract have not otherwise agreed;

              (2) Recognition of a right to performance in the beneficiary is
              appropriate to effectuate the intention of the parties; and

              (3) The terms of the contract or the circumstances
              surrounding performance indicate that either:

              (a) the performance of the promise will satisfy an obligation
              or discharge a duty owed by the promisee to the beneficiary;
              or
                                               -8-
             (b) the promisee intends to give the beneficiary the benefit of
             the promised performance.

             In so holding, we reiterate that our primary focus is upon the
             intent of the contracting parties. Thus, part (1) of the test
             provides that courts should honor any expression of intent by
             the parties to reserve to themselves the benefits of the
             contract.    Likewise, part (2) ensures that third-party
             beneficiaries will be allowed to enforce the contract only
             when enforcement would further the parties’ objectives in
             making the agreement.

Id. at 70 (emphasis added).

       In this case, the performance bond executed by the parties specifically names “the
Johnson County Regional Planning Commission and the State of Tennessee for and on
behalf of Johnson County, Tennessee as sole beneficiaries.” As the trial court correctly
held,

             Here, the bonds only mention the developer and Johnson
             County as parties. There is nothing in the terms of the bond,
             whether explicit or implied, showing an intent to enter into
             the bond for the purpose of protecting lot owners such as
             Plaintiff. There is no extrinsic evidence presented to show
             such an intention. Plaintiff is not a third-party beneficiary of
             the subdivision bond between the developer and Johnson
             County.

       Plaintiffs cite the cases of Roten v. City of Spring Hill, No. M2008-02087-COA-
R3-CV, 2009 WL 2632778 (Tenn. Ct. App., filed Aug. 26, 2009), and Foley v.
Hamilton, 603 S.W.2d 151 (Tenn. Ct. App. 1980), to support their “standing” argument.
Neither of these cases, however, involved a performance bond executed by a developer
and planning commission that expressly designated the county and state as sole
beneficiaries. In Roten, we held that landowners had standing to challenge the actions of
a planning commission as “aggrieved persons” under Tenn. Code Ann. § 27-9-101,
which “authorizes persons who are ‘aggrieved’ to appeal ‘any final order or judgment of
any board or commission functioning under the laws of this state’ to the courts.” 2009
WL 2632778, at *3. Foley involved a dispute over whether the developer or the county
was responsible for road maintenance when the developer had executed a “commitment
for road maintenance,” not a performance bond, wherein it agreed to maintain the roads
                                           -9-
in a subdivision for a minimum of 18 months. 603 S.W.2d at 153. We observed that
“[p]laintiff lot owners are third party beneficiaries to the contractual obligation assumed
by the developers and their rights under the written agreement are justiciable issues under
the declaratory judgment law.” Id. at 154. On a second appeal following our remand, the
Supreme Court decided Foley, determining that “[t]he duty of a county to repair roads
does not arise until roads are accepted” by the county, and that “[t]he developers had an
implied contractual obligation to plaintiffs and all other owners of lots in the subdivision
to do whatever was necessary to obtain an acceptance of the roads by Sevier County at
the end of the eighteen month maintenance period.” Foley v. Hamilton, 659 S.W.2d 356,
360 (Tenn. 1983). We have no disagreement with Roten or Foley, but they are
distinguishable from the present case — in that, the express language of the contract
plaintiffs attempt to rely on demonstrates an intention to exclude third-party beneficiaries.

                                              B.

        Plaintiffs argue that the trial court should have granted their request to issue a writ
of mandamus compelling Johnson County to complete the construction and installation of
the infrastructure of the defunct “subdivision.” As this Court observed in Cooley v. May,
No. M2001-001162-COA-R3-CV, 2001 WL 1660830, at *5-6 (Tenn. Ct. App., filed Dec.
28, 2001),

              A writ of mandamus is an extraordinary remedy. Its purpose
              is to enforce a clearly established legal right, or to compel a
              public official to perform his or her legal duties. A writ of
              mandamus should be granted only when the party seeking it
              has no other specific remedy to enforce its right.

              Mandamus cannot be used to control a public official’s
              judgment or discretion. Thus, the writ cannot be used to
              compel a public official to perform a discretionary act or to
              perform a discretionary act in a particular way. Likewise, if
              the act is not discretionary, a writ of mandamus cannot be
              used to affect a public official’s judgment regarding the
              details of his or her performance of the act. Therefore, a writ
              of mandamus is proper when nothing is left to the public
              official’s judgment.

(Footnotes and internal citations omitted); accord Paduch v. City of Johnson City, 896
S.W.2d 767, 769-70 (Tenn. 1995) (“Mandamus is a summary remedy, extraordinary in its
nature, and to be applied only when a right has been clearly established”). We agree with
the trial court’s holding that there is nothing in the governing statutory scheme, Tenn.
                                             - 10 -
Code Ann. § 13-3-401 et seq., or the planning commission’s regulations that places a
clear duty on the county to complete infrastructure construction when a developer fails in
its duty to do so.

        In Roten, we observed that “[l]ocal land use planning decisions, including how
best to exercise land use control powers, are basically legislative in character and are best
left to local legislative bodies.” 2009 WL 2632778, at *5 (internal quotation marks
omitted). In State ex rel. Byram v. City of Brentwood, 833 S.W.2d 500, 501 (Tenn. Ct.
App. 1991), the plaintiffs “sought to have the trial court mandate the issuance of a
certified plat or, in the alternative, to find that the [planning commission] acted
arbitrarily, capriciously and unreasonably in withholding approval of a plat for a
subdivision.” This Court, concluding that a writ of mandamus was not a proper or
warranted remedy, noted the generally wide discretion afforded to a planning
commission:

              Mandamus is a discretionary remedy that will issue only
              where the duty to be performed is ministerial and the
              obligation to act is peremptory, and plainly defined. . . .
              Mandamus will not lie to control official judgment or
              discretion. Where officials have the duty or opportunity to
              act only after making determinations, evaluations or
              judgments, they cannot be compelled by mandamus to do the
              act or do it in a particular way.

                                   *      *          *

              It is clear that a considerable amount of discretion is required
              to balance the respective rights and interests of present and
              future owners of property proposed for subdivision, present
              and future neighbors to such property, as well as the health,
              safety and general welfare of the City of Brentwood.

833 S.W.2d at 505 (internal citations omitted).

       In this case, after developer went bankrupt before satisfying its obligation to
complete the infrastructure of the planned subdivision, all of the lots on the subdivision
plat, save the few non-contiguous lots that already had been sold to plaintiffs and a
couple of other individuals, were sold to the Nature Conservancy. Then the acreage was
transferred to the State, and made a part of the 8,000-acre public Doe Mountain
Recreation Area. This was done in part by order of the federal bankruptcy court, which
order did not impact plaintiffs’ lots directly, but transferred the property under its
                                            - 11 -
jurisdiction free and clear of any claims or encumbrances. The simple, significant fact is
that, with the exception of the handful of lots sold before the bankruptcy, the remaining
lots in the subdivision were ordered transferred free and clear of any claims or
encumbrances. Thus, after this, there was no subdivision to be developed.

       We are not unmindful of Tenn. Code Ann. § 13-3-403(b)’s provision that,

              [t]he attorney for the county in which the subdivision is
              located is hereby granted the power and duty to enforce any
              such [performance] bond by all appropriate legal and
              equitable remedies, and moneys collected on such bond shall
              be paid into the state treasury and, upon the order of the
              regional planning commission, shall be applied to the
              construction and installation of the improvements and
              utilities.

(Emphasis added.) This provision requires “the order of the regional planning
commission” to the county attorney to exercise his or her power and duty under the
statute. As already discussed, a regional planning commission retains a significant
amount of discretion in deciding whether to issue such an order. This is particularly true
and important when, as here, circumstances regarding the creation of the subdivision
have significantly changed since the plan was approved.

       We have stated on several occasions that “[w]hen a subdivision plan has been
approved upon conditions, the failure to comply with the conditions will result in
rescission of the approval.” Foley, 603 S.W.2d at 153; State ex rel. Byram, 833 S.W.2d
at 505; Metro. Gov’t of Nashville and Davidson Cnty. v. Barry Constr. Co., 240 S.W.3d
840, 852 (Tenn. Ct. App. 2007) (“if a developer fails to comply with the conditions of
approval, the approval of the subdivision plat can be rescinded”). Once the subdivision
plan failed and the approval was rescinded, the regional planning commission retained its
discretion to consider and decide what to do next. It is not the proper role of a court to
mandate how the commission should exercise this discretion under these circumstances.

       Arguably, plaintiffs had potential claims against developer, but it is not clear from
the record if they pursued such claims. In any event, plaintiffs have pointed to no
authority establishing a clear and unequivocal right to compel the County or State to pay,
at taxpayer expense, for roads and utility lines running to their lots under these unusual
and unfortunate circumstances.




                                           - 12 -
                                              C.

       Plaintiffs’ lots are accessible via a three-mile dirt and gravel road, labeled “gravel
road” on the subdivision plat. That road connects to Harbin Hill road, a county road.
The three-mile road is now the main trail for the Doe Mountain Recreation Area,
designated “Trail 1,” as stated by the sworn declaration of Michael Haven Farmer, Chair
of the Board of Directors of the Doe Mountain Recreation Authority, who stated, in
pertinent part, as follows:

              Doe Mountain opened to the public in November 2013, with
              approximately 30 miles of trails open for off-road vehicle use,
              mountain biking, and hiking.

              Trail 1 is the primary through trail on the property, starting
              from the DMRA Visitor Center entrance on Harbin Hill
              Road. This gravel and dirt trail passes near plaintiffs[’] lot
              approximately three miles from the entrance and generally
              runs along the ridgeline for several miles before descending
              to Highway 167 for a total of approximately 9 miles.

              Plaintiffs[’] lot is accessible by two or four-wheel drive
              vehicles, depending on the weather and current road
              conditions. To my knowledge, plaintiff has never approached
              the DMRA Board or a representative of the Board concerning
              access to its lot.

                                   *      *          *

              The DMRA Board has no plans to pave Trail 1 or to dedicate
              a portion of Doe Mountain property for a public road or
              public utilities. Such construction would adversely impact
              the Doe Mountain Recreation Area and would be inconsistent
              with the Management Plan development scenarios adopted by
              the DMRA Board.

(Numbering in original omitted.)

      Plaintiffs asked the trial court to declare that the “gravel road,” now Trail 1, is a
county road, requiring the county to pave and maintain it. Johnson County responds by
arguing that “the road/trail that [plaintiffs] now seek to have declared as a public road
was always planned to be a private road, and there has been no action to unequivocally
                                            - 13 -
dedicate and accept any “road” leading to the [plaintiffs’] lots as a public road.” Tenn.
Code Ann. § 13-3-405 provides that “[t]he approval of a plat by the regional planning
commission shall not be deemed to constitute or effect an acceptance by any county or by
the public of the dedication of any road or other ground shown upon the plat.” Tenn.
Code Ann. § 13-3-406 further provides as follows:

             From and after the time when the platting jurisdiction of any
             regional planning commission of any region has attached by
             virtue of the making and adoption of a major road plan as
             provided in § 13-3-402, no county or court or board or officer
             thereof or any other public officer or authority shall accept,
             lay out, open, improve, grade, pave or light any road or lay or
             authorize water mains or sewers or connections or other
             facilities or utilities to be laid in any road located within such
             region and outside of the boundaries of municipal
             corporations, unless such road has been accepted or opened or
             has otherwise received the legal status of a public road prior
             to the attachment of the planning commission’s jurisdiction,
             or unless such road corresponds in its location and lines with
             a road shown on a subdivision plat approved by the planning
             commission or on a road plat made and adopted by the
             planning commission; provided, that the county legislative
             body of such county may accept or lay out any other road or
             adopt any other road location; provided further, that the
             resolution or other measure for such acceptance, laying out or
             adoption is first submitted to the planning commission for its
             approval and, if disapproved by the commission, receives the
             favorable vote of not less than a majority of the entire
             membership of the county legislative body; and a road
             approved by the planning commission upon such submission,
             or accepted, laid out, or adopted by the commission, shall
             have the status of an approved road location as fully as
             though it had been originally shown on a subdivision plat
             approved by the planning commission or on a plat made and
             adopted by the planning commission.

       In Foley, the Supreme Court stated that “[t]he duty of a county to repair roads
does not arise until roads are accepted,” and “[a] developer’s responsibility to maintain
roads is a continuing responsibility until such time as the county accepts their
dedication.” 659 S.W.2d at 360. Regarding the dedication of a public road, in Hackett v.
Smith Cnty., 807 S.W.2d 695, 699 (Tenn. Ct. App. 1990), this Court stated:
                                           - 14 -
             A completed dedication requires an offer of dedication and a
             public acceptance of that dedication. Smith v. Black, 547
             S.W.2d 947, 950–51 (Tenn. App. 1976). Both the offer of
             dedication and the public acceptance may be express or
             implied. . . . [A]n acceptance may be implied from a general
             and long continued use by the public as of right.

As we have further noted,

             Among the factors which indicate an intent to dedicate are:
             the landowner opens a road to public travel; acquiescence in
             the use of the road as a public road; and the fact the public
             has used the road for an extended period of time[.] While
             dedication is not dependent on duration of the use, extended
             use is a circumstance tending to show an intent to dedicate.
             Finally, an intent to dedicate is inferrable when the roadway
             is repaired and maintained by the public.

Rogers v. Sain, 679 S.W.2d 450, 453 (Tenn. Ct. App. 1984) (internal citations omitted);
accord Cole v. Dych, 535 S.W.2d 315, 319 (Tenn. 1976).

       In this case, plaintiffs do not argue that there was an implied dedication from
general and long continued use by the public, nor is there any evidence to support such a
theory. Neither is there anything in the record showing that the planning commission or
other county legislative body expressly dedicated the gravel road as a county road. We
affirm the trial court’s decision declining to declare the gravel road a county road.

                                           V.

       The decision of the trial court is affirmed. Costs on appeal are assessed one-half
to the appellant, Appaloosa Bay, LLC, and one-half to appellants David Castillo and
Deborah Castillo. The case is remanded for collection of costs below.


                                         _______________________________
                                         CHARLES D. SUSANO, JR., JUDGE




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