State EX REL. Appaloosa Bay, LLC v. Johnson County, Tennessee

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

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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.

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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

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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

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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.

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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.

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(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

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(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

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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.

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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

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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.

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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

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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:

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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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