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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