Mary J. Drozd v. Hermitage Villa Condominiums Homeowners Association, Inc., Hillsboro Property Management Company, Inc., and Gary Waller and State of Tennessee

IN THE COURT OF APPEALS OF TENNESSEE
MIDDLE SECTION AT NASHVILLE

MARY J. DROZD, )
)
Plaintiff/Appellant, ) NO. 01A01-9408-CV-00366
)
VS. ) Davidson County Sixth Circuit
) No. 91C-189
HERMITAGE VILLA )
CONDOMINIUMS HOMEOWNERS )
ASSOCIATION, INC., HILLSBORO )
PROPERTY MANAGEMENT
COMPANY, INC., and
)
)
FILED
GARY WALLER, ) Nov. 17, 1996
)
Defendants/Appellees, ) Cecil Crowson, Jr.
) Appellate Court Clerk
and )
)
STATE OF TENNESSEE, by and )
through CHARLES W. BURSON, )
Attorney General and Reporter, )
)
Intervenor. )

APPEAL FROM THE SIXTH CIRCUIT COURT FOR DAVIDSON COUNTY
AT NASHVILLE, TENNESSEE

THE HONORABLE THOMAS W. BROTHERS

CLYDE PAUL HOLLAND
2628 Old Lebanon Road
Nashville, Tennessee 37214
ATTORNEY FOR PLAINTIFF/APPELLANT

LUTHER E. CANTRELL, JR.
DAVIES, CANTRELL, HUMPREYS & McCOY
150 Second Avenue, North, Suite 225
P.O. Box 190609
Nashville, Tennessee 37219-0609
ATTORNEY FOR DEFENDANTS/APPELLEES

PAMELA BINGHAM BROUSSARD
ASSISTANT ATTORNEY GENERAL
ATTORNEY GENERAL'S OFFICE - TAX DIVISION
404 James Robertson Parkway, Suite 2121
Nashville, Tennessee 37243-0489
ATTORNEY FOR INTERVENOR

AFFIRMED AND REMANDED

ROBERT E. CORLEW, III
SPECIAL JUDGE

CONCUR:

HENRY F. TODD, JUDGE
SAM L. LEWIS, JUDGE
 OPINION

From the decision of the Trial Court dismissing a portion of the original complaint and from

the subsequent decision of the Trial Court granting summary judgment for the Defendants as to a

second ground of recovery sought, the Plaintiff was granted an interlocutory appeal to this court.

The evidence shows that the Plaintiff and her daughter purchased a condominium in the

Hermitage Villa Condominiums for the purpose of a residence for the Plaintiff. The condominiums

had been developed by Defendant Gary Waller, and consisted of some ninety-six duplex units.

Defendant Hillsboro Property Management Company, Inc. managed the condominiums, and

Hermitage Village Condominiums Homeowners Association, Inc. is alleged to have been a

homeowners association formed to oversee the development of the condominiums. It is undisputed

that on the evening of April 11, 1990, at approximately 8:00 p.m., the Plaintiff was attempting to

traverse a distance of some twenty feet across her yard to the door of her condominium, aided by the

use of her walker, when one leg of the walker sank in a hole in the yard which had been created by

a mole or some yard pest. It is further undisputed that this caused the Plaintiff's walker to become

unstable, causing the Plaintiff to fall to the ground, breaking her hip.

The Plaintiff complained to the Court, inter alia, that the provisions of the Uniform

Residential Landlord and Tenant Act were applicable to this cause, and that the failure of the

Defendants to abide by the terms of that act constituted negligence per se. The Trial Court, however,

found that the provisions of that act expressly exclude its application to condominiums, and

dismissed the portions of the complaint alleging negligence due to the alleged failure of the

Defendants to comply with the terms of the Uniform Residential Landlord and Tenant Act.

Similarly, the Plaintiff asserted that the Defendants were negligent per se due to their

violation of a certain Metropolitan Nashville/Davidson County ordinance mandating dimensions for

the condominium at issue. The Court, however, granted the Defendant's Motion for Summary

Judgment as to this ground for relief.

The Plaintiff now seeks the order of this Court causing the Uniform Residential Landlord and

Tenant Act to be applicable to this cause, or alternatively declaring the act to be unconstitutional due

to the language of the act restricting its application to properties other than condominiums. The State

2
of Tennessee intervened in this action in order to defend the constitutionality of the Uniform

Residential Landlord and Tenant Act, as it is written, excluding condominiums from its application.

The Plaintiffs further urge the Court to reverse the order granting summary judgment to the

Defendants due to the alleged violation of the metro driveway ordinance.

The Appellant first argues that because of the unique circumstances of the condominium

herein, the Uniform Residential Landlord and Tenant Act should apply to this particular

condominium, despite the language of the law which provides that it does not apply to such

residential units. The Appellees assert that this issue was never raised before the Trial Court.

Certainly we recognize that it is inappropriate to raise issues on appeal which were not addressed to

the Trial Court. Harrison v. Schrader, 569 S.W.2d 822, 828 (Tenn. 1978); Carl Clear Coal Corp.

v. Huddleston, 850 S.W.2d 140, 143-144 (Tenn. Ct. App. 1992) perm. app. denied (Tenn. 1993);

Tops Bar-B-Q, Inc. v. Stringer, 582 S.W.2d 756, 758 (Tenn. Ct. App. 1977) cert. denied (Tenn.

1978). Because the Appellant, however, generally sought the decision of the Trial Court applying

the uniform law to the residential unit in question, we feel compelled to consider the Appellant's

argument. The Uniform Residential Landlord and Tenant Act generally does not apply to

condominiums because the relationship of landlord and tenant does not exist in such units. A

condominium generally is considered to be a unit in which a number of separate owners own

individual units, within a multiple unit complex, with common areas owned and maintained by all

of the owners as undivided property. The Uniform Residential Landlord and Tenant Act, by contrast,

was passed for the purpose of governing the rights and obligations of landlords who own rental

property, and tenants who have no ownership in the property which they occupy, but pay a sum to

the owner for the privilege of occupying all or a portion of the premises for a period of time.

Tennessee Code Annotated §66-28-103, 104 (1993). The Uniform Residential Landlord and Tenant

Act specifically provides that it is inapplicable to "occupancy by an owner of a condominium unit."

Tennessee Code Annotated §66-28-102 (c) (4) (1993).

The Appellant asserts that despite the language of the statute, it should be made applicable

to the condominium unit in question herein. In support of that contention, the Appellant asserts that

the condominium units in question are separate duplex units, originally designed as rental units,

which were purchased and developed by the Defendants as a condominium project. Further, the

Appellant asserts that the Defendants continue to own virtually all of the condominium units, very

3
few of them having been sold. Further, the condominium association contemplated by law and

initially developed by the Defendants functioned, if at all, only very briefly, and did not, at the time

of the issues in question in this cause, meet the needs of the condominium owners. While we find

the record to support these contentions of the Appellant, we do not find these circumstances

sufficient to apply the Uniform Residential Landlord and Tenant Act to the premises in question.

Despite the fact that many of the other condominium units have never been sold by the developer,

despite marketing of these units over an extended period of time, the evidence is clear that the

Appellant herein purchased her own condominium, and continues to own it. As an owner of her

condominium unit, her responsibilities with regard to the developer, who continues to own a number

of other condominium units, and other condominium owners is vastly different than the relationship

between a renter and a landlord or premises owner. We do not find the Uniform Residential

Landlord and Tenant Act applicable to the present action.

The Appellant further seeks the decision of this Court finding the provisions of the Uniform

Residential Landlord and Tenant Act to be unconstitutional, in that those provisions are applicable

only to relationships between landlords and tenants, and not applicable between condominium

owners and developers. The Tennessee Constitution prevents the passage of laws which benefit one

group of persons, while being inapplicable to other persons, unless the discrimination is based upon

a classification which rests upon a reasonable basis. Tennessee Constitution, Article XI, Section

VIII; C.f., Brentwood Liquors Corporation v. Fox, 496 S.W.2d 454 (Tenn. 1973); City of

Chattanooga v. Harris, 442 S.W.2d 602 (Tenn. 1969). We find, however, that there is a reasonable

basis for a distinction between an owner of a condominium and a renter of an apartment or other

rental unit. In a residential rental unit, the obligations of the tenant and landlord are totally different

from those obligations of an owner of a condominium and other condominium owners or the

association of condominium owners. A condominium owner of course has made an investment in

his condominium, and is owner of his unit. He is generally a more permanent resident, who is not

renting for a temporary period of time, but has made an investment and has responsibility, generally,

for maintenance of his unit. A renter, by contrast, generally is more temporary in nature, and has

made little or no investment in the unit which he occupies. Because there is no ownership on the

part of the renter, the landlord maintains responsibility, generally, for all long-term maintenance

problems, and enjoys the occupancy of the premises only subject to a contract between the parties.

4
While condominium owners and renters may each be required to abide by certain rules and

regulations within their residential complex, just as homeowners in a subdivision are required to

comply with local municipal ordinances and restrictive covenants within a subdivision, renters

generally enjoy less freedom and independence in the manner in which they utilize their residential

unit than those who have made purchases.

We therefore find a reasonable basis for the classifications determined by the legislature, and

find that the discrimination within the Uniform Residential Landlord and Tenant Act to be proper.

It is totally reasonable to apply one set of rules to the relationship between a landlord and a tenant,

and other rules within the relationship between a condominium owner and owners of other

condominiums within the residential unit. Protection of the rights of renters, or tenants, whose

rights are more tenuous than those of property owners justifies the passage of a separate act

applicable to landlords and tenants. We find the passage of this act does not violate the equal

protection clause of the United State Constitution, in that there is a legitimate legislative purpose

behind the passage of the Uniform Residential Landlord and Tenant Act. Similarly, the legislature

has passed a separate act, the Horizontal Property Act, Tennessee Code Annotated §66-27-101, et

seq (1993), which addresses circumstances surrounding condominiums, and the relationship between

a condominium owner and other owners. Because of the factual differences involving these different

relationships, we find that the legislature was justified in passing separate acts. Certainly there is

a strong presumption in favor of legislative actions. Bozeman v. Barker, 571 S.W.2d 279 (Tenn.

1978).

Thus, we find that the Trial Court was justified in dismissing allegations in this cause

predicated upon negligence per se based upon the Uniform Residential Landlord and Tenant Act.

The Appellant also seeks the order of the Court reversing the decision of the Trial Court

which granted summary judgment upon the complaint of the Appellant that the Defendants were

negligent per se in their violation of two sections of the Metropolitan Nashville Code. The two code

sections in question deal with the sizes of parking lots. Courts may not take judicial notice of

municipal ordinances. It is the duty of the party seeking to assert those ordinances to prove them

before the Trial Court, absent stipulations of the parties. Draper v. Haynes, 567 S.W.2d 462, 465

(Tenn. 1978); Adams v. Dean Roofing Company, Inc., 715 S.W.2d 341, 342 (Tenn. Ct. App. 1986)

perm. app. denied; Valley Forge Civic League v. Ford, 713 S.W.2d 665, 669 (Tenn. Ct. App.

5
1986) perm. app. denied. The Appellant introduced excerpts from the Metropolitan Code in the

Trial Court, which we have reviewed as a part of the record. A reading of the excerpts presented,

however, does not show that the ordinances concerning the sizes of driveways and parking areas are

applicable to the premises in question. The Trial Court has carefully reviewed the motion filed by

the Defendants, and accompanying affidavits, as well as the response filed by the Plaintiff, and has

determined as a matter of law that the municipal ordinances do not apply to these premises. We

cannot find that the record reflects any facts on this issue which are disputed, nor can we find that

the ruling of the Trial Court is contrary to the prevailing law. This issue is without merit.

For the reasons stated herein, we affirm the decision of the Trial Court, and remand this cause

for trial upon the remaining issues.

ROBERT E. CORLEW, III, SPECIAL JUDGE

CONCUR:

HENRY F. TODD, JUDGE

SAM L. LEWIS, JUDGE

IN THE COURT OF APPEALS OF TENNESSEE
MIDDLE SECTION AT NASHVILLE

MARY J. DROZD, )
)

6
 Plaintiff/Appellant, ) NO. 01A01-9408-CV-00366
)
VS. ) Davidson County Sixth Circuit
) No. 91C-189
HERMITAGE VILLA )
CONDOMINIUMS HOMEOWNERS )
ASSOCIATION, INC., HILLSBORO )
PROPERTY MANAGEMENT )
COMPANY, INC., and )
GARY WALLER, )
)
Defendants/Appellees, )
)
and )
)
STATE OF TENNESSEE, by and )
through CHARLES W. BURSON, )
Attorney General and Reporter, )
)
Intervenor. )

JUDGMENT

This cause came on further to be considered by the Court upon the interlocutory appeal filed

by the Plaintiff, and upon the briefs of both parties, the arguments of counsel, and upon the entire

record in this cause, from all of which the Court finds that the judgment of the Trial Court should

be affirmed, and that the cause should be remanded to the Trial Court for further proceedings

consistent with the Opinion of this Court.

IT IS THEREFORE ORDERED that the judgment of the Trial Court is affirmed, and the

cause is remanded to the Trial Court for further proceedings consistent with the Opinion of this

Court. Costs of appeal are taxed against the Appellant.

ROBERT E. CORLEW, III, SPECIAL JUDGE

HENRY F. TODD, JUDGE

SAM L. LEWIS, JUDGE