mary-j-drozd-v-hermitage-villa-condominiums-homeowners-association-inc ( 1996 )


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  •                     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