Bradley v. McLeod

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

FILED

August 5, 1998

DANIEL SCOTT BRADLEY, ) Cecil W. Crowson

et ux LINDA BRADLEY, ) Appellate Court Clerk

)

Plaintiffs/Appellees, )

) Williamson Chancery

VS. ) No. 23111

)

GENEVA LYNN McCORD McLEOD, ) Appeal No.

et vir RODRICK McLEOD, ) 01A01-9702-CH-00062

)

Defendants/Appellants. )

APPEAL FROM THE CHANCERY COURT

FOR WILLIAMSON COUNTY

AT FRANKLIN, TENNESSEE

THE HONORABLE CORNELIA A. CLARK, JUDGE

For Plaintiffs/Appellees: For Defendants/Appellants:

M.T. Taylor, Jr. E. Covington Johnston, Jr.

Franklin, Tennessee Franklin, Tennessee

AFFIRMED AND REMANDED

WILLIAM C. KOCH, JR., JUDGE

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OPINION

This case involves a dispute between two neighbors in the Fairview community

of Williamson County concerning the use of a gravel driveway. Three years after

purchasing a tract of land on which portions of the driveway were located, the

property owners filed suit in the Chancery Court for Williamson County to quiet title

to the portions of the driveway they believed to be on their property. Their neighbors

responded that the driveway was their only access to a pubic road and that they had

acquired a right to use the driveway by adverse possession. After the trial court

granted the plaintiffs’ uncontested motion for summary judgment, the defendants

filed a Tenn. R. Civ. P. 59.04 motion asserting that they had an “easement of

presumption” to use the driveway. The trial court denied the post-judgment motion

on the ground that the new defense had not been timely raised. On this appeal, the

losing property owners take issue with the trial court’s decision to grant the summary

judgment and to deny their post-judgment motion. We affirm the summary

judgment.

I.

Agnes McCord lived on a tract of land adjoining Brush Creek Road in

Fairview. She gained access to the road from her house using a gravel driveway. In

September 1988, Ms. McCord conveyed two acres of her property to Paul and Teresa

McCord, her son and daughter-in-law. Even though the conveyed property contained

portions of her gravel driveway, Ms. McCord did not expressly reserve an easement

for the driveway in the deed. However, she continued to use the driveway without

objection.

When Ms. McCord died in 1989, her two sons conveyed their interests in her

property to their sister, Geneva McCord McLeod. While their deed is inexplicably

not in the record,1 there is no evidence that the quitclaim deed prepared by the two

brothers recognized an ingress or egress easement for the gravel driveway serving the

1

The record contains James McCord’s affidavit referring to the quitclaim deed and stating

that a copy of the deed is attached to the affidavit. The copy is not attached to the affidavit, and we

have been unable to locate one anywhere else in the record.

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house and the property. Nevertheless, Ms. McLeod continued to use the gravel

driveway to access the public road just as her mother had done.

Shortly after acquiring the property, Paul and Teresa McCord used it as

security on a promissory note. They defaulted on the note in 1991, and the creditor

foreclosed on the mortgage and sold the property to Jim Walter Homes, Inc. The

substitute trustee’s deed to Jim Walter Homes contained no reference to an ingress

or egress easement for the gravel driveway to Ms. McCord’s house. In February

1992, Daniel and Linda Bradley acquired the property from Jim Walter Homes. Their

deed – consistent with the preceding deeds – does not mention or recognize an

ingress and egress easement for the gravel driveway to the house now owned by Ms.

McLeod.

For a time after the Bradleys moved onto their property, both the Bradleys and

the McLeods used the gravel driveway as their common access to Brush Creek Road.

However, differences between the neighbors eventually erupted into an open dispute

over the use of the driveway. In January 1995, the Bradleys filed suit in the Chancery

Court for Williamson County seeking to quiet title to the portions of the driveway on

their property. They sought a declaration that the portions of the driveway on their

property belonged to them and an injunction preventing the McLeods from using the

portions of the driveway on the Bradleys’ property. The McLeods responded that the

gravel driveway was their only means of access to Brush Creek Road and that they

had acquired the right to continue to use the gravel driveway by adverse possession.

The Bradleys filed a fully supported summary judgment motion asserting that

they were entitled to a judgment as a matter of law because the undisputed facts

showed that the McLeods were not entitled to an easement of necessity. The

McLeods filed nothing in response to the Bradleys’ motion. Following a hearing, the

trial court granted the Bradleys’ motion for summary judgment after finding that the

material facts were not disputed and that the McLeods were not entitled to an

easement over the Bradleys’ property. Accordingly, the trial court entered a

judgment ordering title to the disputed property quieted in the Bradleys, giving the

Bradleys the exclusive right to possess the disputed property, and enjoining the

McLeods and their heirs and assigns from coming onto the property for any purpose.

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In September 1996, the McLeods filed a motion to alter or amend “or in the

alternative to set aside” the trial court’s order. For the first time, they argued that

they had an “easement of presumption” entitling them to use the disputed portions of

the gravel driveway. They supported the motion with affidavits from Paul McCord

and his brother discussing Ms. McCord’s unwritten intentions concerning the

driveway when she conveyed the property to Paul and Teresa McCord in 1988.

These affidavits also stated that the gravel driveway had been in existence for more

than twenty years. The trial court denied the McLeods’ post-judgment motion. The

trial court noted that the McLeods had failed to file a response contesting the

Bradleys’ motion for summary judgment and that “[t]he information now submitted

by [the McLeods] is not newly-discovered. It simply comes too late.”

II.

We turn first to the trial court’s denial of the McLeods’ Tenn. R. Civ. P. 59.04

motion because the outcome of this issue materially affects our scope of review of

the decision to grant the Bradleys’ motion for summary judgment. While the

McLeods do not directly challenge the denial of their motion, they rely heavily on the

evidentiary material filed with the motion. The denial of the McLeods’ Tenn. R. Civ.

P. 59.04 motion had the legal effect of excluding this evidence from consideration.

Thus, if we affirm the denial of the McLeods’ Tenn. R. Civ. P. 59.04 motion, we will

not consider the evidentiary materials attached to it when reviewing the trial court’s

decision to grant the summary judgment.

Summary judgment proceedings are not disfavored procedural shortcuts, see

Byrd v. Hall, 847 S.W.2d 208, 210 (Tenn. 1993); Mansfield v. Colonial Freight Sys.,

862 S.W.2d 527, 530 (Tenn. Ct. App.1993), but rather are useful proceedings that

provide an expeditious and inexpensive means to conclude litigation when there are

no material factual disputes. See Alexander v. Memphis Individual Practice Ass’n,

870 S.W.2d 278, 280 (Tenn. 1993); Foley v. St. Thomas Hosp., 906 S.W.2d 448, 452

(Tenn. Ct. App. 1995). The practicing bar has now been on notice for more than two

decades that summary judgment motions should not be taken lightly. See Poling v.

Goins, 713 S.W.2d 305, 308 (Tenn. 1986); Fowler v. Happy Goodman Family, 575

S.W.2d 496, 498 (Tenn. 1978). They have also been admonished repeatedly that

parties facing a summary judgment motion cannot rest on the mere allegations or

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denials in their pleadings but rather must respond with appropriate evidentiary

materials demonstrating that there is a genuine issue for trial. See Tenn. R. Civ. P.

56.06; Fowler v. Happy Goodman Family, 575 S.W.2d at 498; Dellinger v. Pierce,

848 S.W.2d 654, 656 (Tenn. Ct. App. 1992).

Unfortunately not all lawyers heed Tenn. R. Civ. P. 56.06's clear warning.

With increasing frequency, they do not take a motion for summary judgment

seriously until after it has been granted. Then, relying on Schaefer v. Larsen, 688

S.W.2d 430 (Tenn. Ct. App. 1984) and its progeny, they file a Tenn. R. Civ. P. 59.04

motion seeking to set aside the summary judgment using evidentiary materials that

should have been submitted to the trial court before the summary judgment was

granted. In some instances, these lawyers have been successful in overturning a

previously granted summary judgment, see Richland County Club, Inc. v. CRC

Equities, Inc., 832 S.W.2d 554, 557-58 (Tenn. Ct. App. 1991); Schaefer v. Larsen,

688 S.W.2d at 433-34, but in other instances they have not. See Marr v. Montgomery

Elevator Co., 922 S.W.2d 526, 528 (Tenn. Ct. App. 1995).

Oftentimes, lawyers seeking to overturn a summary judgment after it has been

granted overlook the fact that the trial courts may deny a Tenn. R. Civ. P. 59.04

motion seeking to introduce new evidence if there is no particularized showing of due

diligence or of the reasons why the new evidence could not have been discovered and

presented prior to the initial consideration of the summary judgment motion. See

Marr v. Montgomery Elevator Co., 922 S.W.2d at 528. While the panel that decided

Schaefer v. Larsen expressed some inclination to relax the strict requirements

associated with motions for new trial based on newly discovered evidence, no court

has held that the issues of diligence and availability cannot or should not be

considered when a party seeks to alter or amend a summary judgment using new

evidence.

The purpose of Tenn. R. Civ. P. 59 motions is to prevent unnecessary appeals

by providing trial courts with an opportunity to correct errors before a judgment

becomes final. See Rupe v. Durbin Durco, Inc., 557 S.W.2d 742, 748 (Tenn. Ct. App.

1976), overruled on other grounds, Crosslyn v. Alsup, 594 S.W.2d 379, 380 (Tenn.

1980). Tenn. R. Civ. P. 59.04 motions may be granted (1) when the controlling law

changes before a judgment becomes final, (2) when previously unavailable evidence

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becomes available, or (3) when, for sui generis reasons, a judgment should be

amended to correct a clear error of law or to prevent injustice. See Helton v. ACS

Group, 964 F. Supp. 1175, 1182 (E.D. Tenn. 1997) (construing Fed. R. Civ. P. 59(e)).

They should not, however, be granted if they are simply seeking to relitigate matters

that have already been adjudicated. See Windsor v. A Fed. Executive Agency, 614 F.

Supp. 1255, 1264 (M.D. Tenn. 1983) (construing Fed. R. Civ. P. 59(e)). Thus, a

Tenn. R. Civ. P. 59.04 motion should not be used to alter or amend a summary

judgment if it seeks to raise new, previously untried legal theories, to present new,

previously unasserted legal arguments, or to introduce new evidence that could have

been adduced and presented while the summary judgment motion was pending. See

Helton v. ACS Group, 964 F. Supp. at 1182; McCorkle v. Dyer County, No. 02A01-

9701-CV-00020, 1998 WL 155437, at *4 (Tenn. Ct. App. Apr. 6, 1998) (No Tenn.

R. App. P. 11 application filed).

The McLeods’ Tenn. R. Civ. P. 59.04 motion contains two flaws. First, it

seeks to introduce a new legal defense that was not presented to the trial court before

it granted the summary judgment. Second, it seeks to present evidence not introduced

prior to the original summary judgment hearing. Both Paul McCord and James

McCord have been aware of this evidence since 1988, and thus the McLeods have not

demonstrated even the minimal diligence needed in order to be entitled to relief from

a summary judgment under Tenn. R. Civ. P. 59.04. Accordingly, the trial court did

not abuse its discretion when it denied the McLeods’ Tenn. R. Civ. P. 59.04 motion.

As a consequence, we will review the propriety of the summary judgment without

considering the affidavits submitted by Paul and James McCord.

III.

We turn now to the McLeods’ assertion that the trial court should not have

granted the summary judgment because the Bradleys have not demonstrated that they

are entitled to a judgment as a matter of law based on the undisputed facts. Their

argument must be confined to their easement of necessity and adverse possession

defenses because we have affirmed the trial court’s decision that their “easement of

presumption” defense came too late. Based on the record before the trial court at the

time of the summary judgment hearing, we have concluded that the Bradleys are

entitled to a summary judgment.

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A.

Summary judgments enjoy no presumption of correctness on appeal. See

Nelson v. Martin, 958 S.W.2d 643, 646 (Tenn. 1997); City of Tullahoma v. Bedford

County, 938 S.W.2d 408, 412 (Tenn. 1997). Accordingly, reviewing courts must

make a fresh determination concerning whether the requirements of Tenn. R. Civ. P.

56 have been satisfied. See Hunter v. Brown, 955 S.W.2d 49, 50-51 (Tenn. 1997);

Mason v. Seaton, 942 S.W.2d 470, 472 (Tenn. 1997). Summary judgments are

appropriate only when there are no genuine factual disputes with regard to the claim

or defense embodied in the motion and when the moving party is entitled to a

judgment as a matter of law. See Tenn. R. Civ. P. 56.04; Bain v. Wells, 936 S.W.2d

618, 622 (Tenn. 1997); Carvell v. Bottoms, 900 S.W.2d 23, 26 (Tenn. 1995).

Courts reviewing summary judgments must view the evidence in the light most

favorable to the nonmoving party and must also draw all reasonable inferences in the

nonmoving party’s favor. See Robinson v. Omer, 952 S.W.2d 423, 426 (Tenn. 1997);

Mike v. Po Group, Inc., 937 S.W.2d 790, 792 (Tenn. 1996). Thus, a summary

judgment should be granted only when the undisputed facts reasonably support one

conclusion -- that the moving party is entitled to a judgment as a matter of law. See

McCarley v. West Quality Food Serv., 960 S.W.2d 585, 588 (Tenn. 1998); McCall

v. Wilder, 913 S.W.2d 150, 153 (Tenn. 1995).

The party seeking the summary judgment has the burden of satisfying the court

that the requirements of Tenn. R. Civ. P. 56 have been met. See Shadrick v. Coker,

963 S.W.2d 726, 731 (Tenn. 1998); Jenne v. Snyder-Falkinham, 967 S.W.2d 327, 331

(Tenn. Ct. App. 1997). Once a moving party has met its burden, the opposing party

must come forward with specific facts creating a material, triable factual dispute. See

Braswell v. Carothers, 863 S.W.2d 722, 728 (Tenn. Ct. App. 1993); Masters v.

Rishton, 863 S.W.2d 702, 705 (Tenn. Ct. App. 1992). A failure by the opposing party

to respond precludes factual disputes, see Union Serv. Indus., Inc. v. Sloan, No. 88-

127-II, 1988 WL 99722, at *2 (Tenn. Ct. App. Sept. 28, 1988) (No Tenn. R. App. P.

11 application filed), and if the material facts are left undisputed, the trial court may

grant a judgment if the law, as applied to the undisputed facts, mandates a judgment

for the moving party. See Parker v. Vanderbilt Univ., 767 S.W.2d 412, 418 (Tenn.

Ct. App. 1988).

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B.

An easement is an interest in property that confers on its holder an enforceable

right to use another’s property for a specific purpose. See Brew v. Van Deman, 53

Tenn. (6 Heisk.) 433, 436 (1871); Clayton v. Wise, 1 Tenn. Civ. App. (Higgins) 620,

638-39 (1910). Parties may create an easement by express grant or reservation by

including language in their deed reserving for certain identified parties a limited right

to use some or all of the land conveyed. See Long v. Mayberry, 96 Tenn. 378, 382,

36 S.W. 1040, 1041 (1896); Reider v. Orme, 17 Tenn. App. 497, 500-01, 68 S.W.2d

960, 962 (1933).

Easements may also be created by implication, prescription, estoppel, or

eminent domain. See Pevear v. Hunt, 924 S.W.2d 114, 115-16 (Tenn. Ct. App.

1996). Easements by implication are not favored and are exceptions to the general

rule that easements must be created either by an express writing or by prescription.

See Cole v. Dych, 535 S.W.2d 315, 318 (Tenn. 1976); Lively v. Noe, 62 Tenn. App.

218, 222, 460 S.W.2d 852, 854 (1970). Unlike express easements, they take into

account the prior use made of conveyed land. They ordain the perpetuation of that

use on the general principle that property is usually passed along with its burdens

and that the parties, as evidenced by their actions, understood that their property was

thus conveyed. See Roger A. Cunningham, et al., The Law of Property §§ 8.4 - 8.5

(1984); 2 American Law of Property §§ 8.31-8.38 (1952). Courts may find an

easement by implication as a matter of practical necessity when refusing to recognize

such an easement leaves a tract of property otherwise inaccessible. See Tenn. Code

Ann. §§ 54-14-101, - 117 (1993); Cianciolo v. Chapman, 49 Tenn. App. 33, 41, 350

S.W.2d 80, 83 (1961).

An easement by prescription (or, at it is sometimes called, by adverse

possession) also differs from an express easement in that it is not based on the

language in a deed but rather on the use of the property. An easement by prescription

arises when a person, acting under an adverse claim of right, makes uninterrupted,

open and visible use of another’s property for at least twenty years with the owner’s

knowledge and acquiescence. Long v. Mayberry, 96 Tenn. at 382, 36 S.W. at 1041;

Pevear v. Hunt, 924 S.W.2d at 116.

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C.

The undisputed facts before the trial court demonstrated conclusively that Ms.

McCord did not reserve an express easement for the gravel driveway when she

conveyed a portion of her property in 1988 to her son and daughter-in-law. Her deed

neither creates, recognizes, nor reserves any right to continue using the conveyed

property for ingress and egress. Thus, the trial court correctly concluded as a matter

of law that the McLeods have no easement by express grant or reservation over the

Bradleys’ property.

The trial court concluded correctly that the McLeods have no implied easement

by necessity. Thomas White’s uncontroverted affidavit shows that the McLeods

could easily make another driveway wholly on their own land. In Mr. White’s words,

this driveway “would be as good and convenient as the alleged easement over the

[Bradleys’] land.” Such was the case in Allison v. Allison, 29 Tenn. App. 99, 104-05,

193 S.W.2d 476, 478 (1945). Just as we declined to imply an easement of necessity

for a driveway in that case, we see no basis to imply one here under the undisputed

facts.

We need not consider the McLeods’ implied easement argument because we

have already determined that they asserted this theory too late. The record before the

trial court contained nothing about the McCord family’s unwritten intentions. All

that the trial court had were the first and successive recorded deeds on the two-acre

tract and the survey evidence. Where a grantor gives a warranty deed without

expressly reserving any easement, “there can be no reservation by implication unless

the easement is strictly one of absolute necessity.” LaRue v. Greene County Bank,

179 Tenn. 394, 406-07, 166 S.W.2d 1044, 1049 (1942). Based on the undisputed

evidence before it, the trial court correctly declined to find the existence of an implied

easement.

Likewise, the McLeods have no easement by prescription or adverse

possession. Based on the undisputed facts, neither Ms. McCord nor Ms. McLeod

have used the driveway openly and notoriously against the owners of the property

following the 1988 conveyance. Prior to the conveyance, Ms. McCord owned the

driveway and, therefore could not have been using the driveway adversely to herself.

The doctrine of prescriptive easement cannot apply when there is no evidence that

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anyone has adversely used the property for the required period of time. See Town of

Benton v. Peoples Bank, 904 S.W.2d 598, 602 (Tenn. Ct. App. 1995). The trial court

was impregnably right in concluding that no easement by prescription exists in this

case.

IV.

We affirm the summary judgment and remand the case to the trial court for

whatever further proceedings may be required. We tax the costs of this appeal to

Geneva Lynn McCord McLeod and Roderick McLeod, jointly and severally, for

which execution, if necessary, may issue.

______________________________

WILLIAM C. KOCH, JR., JUDGE

CONCUR:

__________________________________

HENRY F. TODD, PRESIDING JUDGE

MIDDLE SECTION

__________________________________

SAMUEL L. LEWIS, JUDGE

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