Anthony Ray Adkins v. Bluegrass Estates, Inc. , 2011 Tenn. App. LEXIS 468 ( 2011 )

IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
August 16, 2011 Session
ANTHONY RAY ADKINS ET AL. v. BLUEGRASS ESTATES, INC. ET AL.
Appeal from the Chancery Court for Claiborne County
No. 16,335 Billy Joe White, Chancellor
No. E2011-00044-COA-R3-CV-FILED-AUGUST 30, 2011
The purchasers of lots in a “subdivision known as Timberlake Estates, Phase One” –
described in a plat and restrictive covenants as a twenty-lot subdivision – acquired with their
deeds the right to use a boat ramp and parking area to be located in a common area within
the subdivision. When they learned that additional lots – not located within the combined
acreage of the twenty lots – were being advertised for sale along with the right to use the
same boat ramp and parking area, they filed this action against their predecessor in interest.1
After a trial on the merits, the court held that only the purchasers of lots in “Phase One” were
entitled to use the boat ramp and parking area. The defendants appeal. We affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court
Affirmed; Case Remanded
C HARLES D. S USANO, J R., J., delivered the opinion of the Court, in which H ERSCHEL P.
F RANKS, P.J., and J OHN W. M CC LARTY, J., joined.
Thomas J. Tabor, Jr., Tazewell, Tennessee, for the appellants, Daniel J. Tribell, and wife,
Ruby Tribell, as Trustees of the Daniel J. Tribell and Ruby Tribell Living Trust.
Terry M. Basista, Jacksboro, Tennessee, for the appellees, Anthony Ray Adkins and wife,
Raye Ann Adkins; Ronald D. Casey; John C. Coward and wife, Sandra Coward; John
Delaura and wife, Michelle Delaura; Brain P. Goins and wife, Nichole Goins; David D.
Gough; Mayford McCarter and wife, Helen McCarter; Michael J. McWhorter; David E.
Miller and wife, Kathryn D. Miller; Teresa D. Poston; and, Kenneth Powell and wife,
Carolyn Powell.
1
As we will later explain more fully, Bluegrass Estates, Inc. bought the predecessor’s remaining land
with plans to develop it, but eventually conveyed it back to the predecessor. Bluegrass was only a nominal
defendant at trial and is not a party to this appeal.
OPINION
I.
A.
On or about July 9, 2003, Daniel J. Tribell and Ruby Tribell, Trustees of the Daniel
J. Tribell and Ruby Tribell Living Trust (referred to herein collectively as “Tribell”)2 ,
recorded in the office of the Claiborne County Register of Deeds a document styled
“Protective and Restrictive Covenants of Timberlake Estates Phase One” (“the Declaration”).
Daniel Tribell, who is an attorney licensed in Kentucky, drafted the instrument. The terms
pertinent to this dispute are
WHEREAS, the undersigned, Daniel J. Tribell and Ruby
Tribell, Trustees of the Daniel J. Tribell and Ruby Tribell Living
Trust, are the owners of the following described subdivision
known as Timberlake Estates, Phase One, which has been
subdivided and recorded, and which proposes to restrict by this
instrument, and
WHEREAS, said subdivision is known as Timberlake Estates,
Phase One, on Jones Ridge Road, Speedwell, Claiborne County,
Tennessee, and a map or plat of said subdivision is of record in
the Register of Deeds Office, Claiborne County, Tennessee, in
Plat Book 3, at Page 346, and,
WHEREAS, it is now desired and the intention and purposes for
the benefit and protection of the present owners or future
purchasers of a lot or lots in this subdivision, and to establish a
sound value for these lots, and to record these restrictions so that
they may be binding and enforceable and of public record.
NOW THEREFORE, in consideration of the premises and the
conditions and purposes herein set out, the undersigned, Daniel
J. Tribell and Ruby Tribell, Trustees of the Daniel J. Tribell and
Ruby Tribell Living Trust, bind themselves, their heirs,
2
Since Daniel Tribell was the person who drafted the documents at issue, interacted with the
purchasers and was a witness a trial, we will occasionally, where the context demands, make use of the
singular masculine pronoun.
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executors, administrators, successors and assigns, to impose the
following covenants that will run with the land and/or lots in the
subdivision referred to herein. These protective and restrictive
covenants are as follows:
* * *
4. All homes constructed on any of the 20 lots making up this
subdivided property shall have a minimum of 1,000 square feet
....
* * *
14. Use of the boat launching area and adjacent parking area
shall be on a “first come, first served” basis, and while the
easement and launching areas are not meant for public use,
property owners should be aware that this launching and
parking area may be used by the present owners and owners of
lots and property obtained from these developers.
(Capitalization in original; emphasis added.) The referenced plat was recorded July 31,
2002. It reflects a total of 20 lots.
On July 12, 2003, Tribell held a public auction of all lots in the subdivision. It was
advertised with brochures. The brochures state prominently on their front, among other
things, “Absolute Auction Norris Lake, 20 Fabulous Tracts – 13 On the Water. ....
TIMBERLAKE ESTATES.” (Capitalization in original.) The back of the brochure repeats
some of the language on the front and adds:
Boat Ramp: Private parking and boat ramp for owners of
Timberlake Estates – reasonable restrictions for your protection.
An audio recording was made of the announcement of the “terms and conditions” on
the day of the auction. It is clear from the recording that a large plat of the subdivision was
displayed for all potential buyers to see. It is also clear that a copy of the Declaration was
provided to all potential buyers. An announcement was made that 19 lots would be offered
for sale and that all deeds would be subject to the Declaration. Potential purchasers were told
that, as illustrated on the plat, there would be “private parking” in the vicinity of lots 6 and
7 for the “quiet enjoyment” of the “owners of Timberlake Estates.” They were further told
that lot 6 had been removed from the sale with the decision that it would “never” be sold
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because the developer had decided that more room was need for parking than the .221 acres
reflected on the plat because the original parking area was “not enough land for these people
down there.” It was announced that the developer would bear the expense of providing
roads, electricity, and the proposed boat ramp reflected on the plat. Purchasers were assured
that Tribell would secure a permit and construct the boat ramp when conditions allowed.
Only approximately half of the 20 lots were sold. Tribell managed to sell a few more
lots by private sale. All deeds from Tribell to purchasers contained a provision stating that
the “lot is sold SUBJECT to the [Declaration] filed with Plat and in Book 1126, Page 452-
454, Register of Deeds Office, Tazewell, Claiborne County, Tennessee.” (Capitalization in
original.) Tribell drafted the deeds.
Tribell then sold the unsold remainder of the 20 lots contained in “Phase One" plus
significant other acreage to Bluegrass Estates, Inc. Bluegrass assumed the obligation of
developing the property including the obligation of building the boat ramp and parking area.
Tribell financed the purchase by Bluegrass and took a mortgage as security. Trouble
surfaced when Bluegrass advertised a second auction scheduled for June 16, 2007, of “250
acres” of “Wooded Estate Size Tracts” with a “[p]rivate boat launch and common area for
all tract buyers.” Interestingly, a map was included in the sales brochure that showed the
development to be adjacent to “Timber Lake Estates” rather than being a part of it. Also,
the brochure advertised that the estate-size tracts ranging in size from 9 to 21 acres could be
subdivided “after 5 years.” The “Phase One” lots could not be subdivided.
The majority of those individuals who had purchased “Phase 1” lots joined as
plaintiffs (“the Plaintiffs”) in an action filed on or about June 15, 2007, against Bluegrass and
Tribell. That same day the Plaintiffs and Bluegrass reached an agreement settling all claims
between them. The first complaint was dismissed without prejudice and the sale went
forward. It was not successful. Bluegrass defaulted on its obligations under the settlement
agreement as well as its obligations under the purchase agreement with Tribell. Tribell
foreclosed and took all unsold property back from Bluegrass. The Plaintiffs re-filed this
present action. The boat ramp and parking area has not been built.
B.
After hearing the proof we have outlined, the court announced the following as its
decision:
There’s no need in going any further in the lawsuit. . . . There’s
not a great factual dispute in this matter. . . . As far as I’m
concerned, this lawsuit is a business transaction. . . . Gentlemen,
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I consider this matter a much more simple matter after reviewing
all of the evidence from these lawyers. I’m looking here at three
or four documents . . . . I’m going to use somebody of common
average intelligence and sense in business experience that comes
upon an advertised transaction. And handed to him is a
document . . . [that] says, “Norris Lake, Absolute Auction,
Saturday, twenty fabulous tracts, thirteen on the water,
Timberlake Estates, year-round water on Norris Lake with 850-
mile shoreline. Lots 15 and 16 will sell at Absolute Auction, all
other with reservation.” It has a map of this property. On the
back of this document it says, “Absolute Auction,” which has
legal meanings that we all lawyers understand, “on Saturday,
July 12th at 11:00 a.m. The Timberlake Estates will sell twenty
fabulous tracts, thirteen on the water.” And it gives an
auctioneer’s note, “Excellent finances, the location, year-round
water on Norris Lake with 850 miles shoreline.” And it says,
“Boat ramp, private parking and boat ramp for owners of
Timberlake Estates. Reasonable restrictions for your
protection.” Now, Timberlake Estates is described here as
twenty fabulous tracts. We have another brochure, “Absolute
Auction.” The same general description, prettier color. These
are nice lots. There is a map of the entire area, and on the back
its says, “Absolute Auction, Norris Lake, twenty family tracts,
thirteen on the water. Boat ramp, private parking and boat ramp
for owners of Timberlake Estates. Reasonable restrictions for
your protection.” . . . . If you buy a lot, private parking, private
boat ramp, reasonable restrictions. And then coming with the
deed is a document, described as Exhibit 1, that reads like this:
“The use of the launching area and adjacent parking area shall
be on a first-come first-served basis.” Well, that’s certainly
reasonable between the sale of twenty lots here. That’s the way
it would have to be. “And while the easement and launching
areas are not meant for public use, property owners should be
aware that this launching and parking area may be used by the
present owners, as all the lot owners, and owners of lots and
property obtained from these developers.” In the auction all
twenty lots did not sell. Some of the lots of the plaintiffs here
today were acquired subsequent to this, so that’s what that can
mean very easily, and I think in commonsense terms that’s what
it does mean. Under no circumstances can this court construe
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the documentation of this sale to mean that we’re going to set
aside Lot 6 for our twenty Timberlake members and two
hundred and fifty others who are going to come along. Had that
been announced, that’s the same as not having any access. It
would be the same as having public access. It would be
practically no access. I think it would depreciate the value of
the lots by half, and I think the plaintiffs are reasonably entitled
to believe that their launching area was only for their twenty
tracts of land. And the court so holds that that’s the law in this
case and that these lots shall be held in perpetuity for the use and
benefit of these twenty sold – or unsold tracts. If there’s any
tracts unsold, they can be used by those owners but by nobody
else. . . . .
* * *
I’ve not found any intentional misconduct on Mr. Tribell’s part.
I don’t think he intentionally tried to mislead these people. I
think they were just misled by the way it was done. . . . .
The court entered judgment awarding the Plaintiffs zero damages but holding that,
The present and future owners of lots [numbering twenty (20)]
in the subdivision known as “Timberlake Estates, Phase One”
are and shall henceforth be entitled to the unencumbered and
private use of the present easement, parking area (including Lot
6), and boat ramp/launching area as a right which runs with the
land in perpetuity appurtenant to each of the said Twenty (20)
lots in said subdivision, to the exclusion of all others who are
not owners of one or more of the lots in the said Timberlake
Estates, Phase One Subdivision which is the subject of this civil
action. It is further specifically found and determined that no
parcel, tract, or lot from any of the adjoining acreage outside of
the confines of the Timberlake Estates, Phase One Subdivision
shall have any appurtenant right of use of the present easement
....
II.
Tribell filed a timely notice of appeal. He raises the following issues:
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Whether the court erred in interpreting the covenant.
Whether the court erred in implying new terms in the covenant.
Whether the court erred in adjudicating property rights of
nonparties without jurisdiction.
Whether the court erred by failing to find facts or to state
separately its conclusions or law.
III.
The factual findings of a trial court sitting without a jury are reviewed de novo with
a presumption of correctness and will not be reversed on appeal unless the evidence
preponderates against those findings. Tenn. R. App. P. 13(d); In re Angela E., 303 S.W.3d
240, 246 (Tenn. 2010). Interpretation of written documents is generally a matter of law for
the court that is reviewed de novo with no presumption of correctness. Allstate v. Watson,
195 S.W.3d 609, 611 (Tenn. 2006); Nelson v. Wal-Mart Stores, 8 S.W.3d 625, 628 (Tenn.
1999). However, it can become an issue for the trier of fact if the document is ambiguous
and parole evidence is needed to determine the meaning of the document. Planters Gin v.
Federal Compress, 78 S.W.3d 885, 890 (Tenn. 2002).
IV.
Tribell argues that the Declaration is “unambiguous and contains no express or
implied limit to prevent [him] from granting further easements to owners beyond Phase 1.”
Although he does not connect all the dots, he clearly wants to lead us to the conclusions that
the court should have confined its analysis to the four corners of the Declaration, and that the
language of the Declaration clearly gives him the right to grant use of the boat ramp and
parking area to purchasers of property outside Phase One. Interestingly, Tribell offered his
own parole evidence about the meaning of the Declaration, and he does not argue that the
court erred in admitting the parole evidence. He argues that “[t]here was simply no evidence
presented that [he] ever intended to make the private use of his own boat ramp exclusive to
buyers in only one part of Timberlake estates.” Finally, Tribell contends that the court found
the Declaration to be unambiguous but nevertheless erroneously found the meaning of the
Declaration outside of its four corners.
We must begin with the rules applicable to construction of written documents such
as deeds.
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. . .“The central tenet of contract construction is that the intent
of the contracting parties at the time of executing the agreement
should govern.” Planters Gin Co. v. Fed. Compress &
Warehouse Co., Inc., 78 S.W.3d 885, 890 (Tenn. 2002). The
court’s role in resolving disputes regarding the interpretation of
a contract is to ascertain the intention of the parties based upon
the usual, natural, and ordinary meaning of the language used.
Allstate Ins. Co., 195 S.W.3d at 611; Staubach Retail
Services-Southeast LLC v. H.G. Hill Realty Co., 160 S.W.3d
521, 526 (Tenn. 2005); . . . Bob Pearsall Motors, Inc. v. Regal
Chrysler-Plymouth Inc., 521 S.W.2d 578, 580 (Tenn. 1975).
All provisions of the contract should be construed in harmony
with each other to promote consistency and avoid repugnancy
among the various contract provisions. Teter v. Republic
Parking Systems, Inc., 181 S.W.3d 330, 342 (Tenn. 2005). . . .
The interpretation of an agreement is not dependent on any
single provision, but upon the entire body of the contract and the
legal effect of it as a whole. Aetna Cas. & Surety Co. v. Woods,
565 S.W.2d 861, 864 (Tenn. 1978). The entire contract must be
considered in determining the meaning of any or all of its parts.
Id.
In construing the contract, the trial court is to determine whether
the language is ambiguous. Allstate Ins. Co., 195 S.W.3d at
611; Planters Gin Co., 78 S.W.3d at 890. If the language in the
contract is clear and unambiguous, then the “literal meaning
controls the outcome of the dispute.” Allstate Ins. Co., 195
S.W.3d at 611; City of Cookeville, Tn. v. Cookeville Regional
Med. Ctr., 126 S.W.3d 897, 903 (Tenn. 2004); Planters Gin
Co., 78 S.W.3d at 890. “A contract term is not ambiguous
merely because the parties to the contract may interpret the term
in different ways.” Staubach, 160 S.W.3d at 526.
If, however, the language in a contract is susceptible to more
than one reasonable interpretation, the parties’ intent cannot be
determined by a literal interpretation of the contract. Allstate
Ins. Co., 195 S.W.3d at 611 (citing Planters Gin Co., 78
S.W.3d at 889-90). Contract language “is ambiguous only when
it is of uncertain meaning and may fairly be understood in more
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ways than one.” Allstate Ins. Co., 195 S.W.3d at 611 (quoting
Farmers-Peoples Bank v. Clemmer, 519 S.W.2d 801, 805
(Tenn.1975)).
If contractual language is found to be ambiguous, then a court
must apply established rules of construction to ascertain the
parties’ intent. Allstate Ins. Co., 195 S.W.3d at 611-12 ( citing
Planters Gin Co., 78 S.W.3d at 890). “Only if ambiguity
remains after the court applies the pertinent rules of construction
does [the legal meaning of the contract] become a question of
fact” appropriate for a jury. Planters Gin Co., 78 S.W.3d at
890. In that case, a factfinder may use extrinsic or parol
evidence, such as the parties’ course of conduct and statements,
to guide the court in construing the contract. Allstate Ins. Co.,
195 S.W.3d at 612. If the contract is unambiguous, then the
court should not go beyond its four corners to ascertain the
parties’ intention. Rogers v. First Tennessee Bank National
Ass’n, 738 S.W.2d 635, 637 (Tenn. Ct. App. 1987).
Shuttleworth, Williams, Harper, Waring & Derrick, PLLC v. Smith, No. W2007-00295-
COA-R3-CV, 2010 WL 744375, at *2 -3 (Tenn. Ct. App. W.S., filed March 5, 2010).
To aid the court’s discernment of the parties’ intention,
however, the parol evidence rule does not prohibit the court
from considering the circumstances surrounding the formation
of the contract, the business to which the contract relates, and
the construction placed upon the contract by the parties in
carrying it out. Simonton v. Huff, 60 S.W.3d 820, 825 (Tenn.
Ct. App. 2000); Frank Rudy Heirs Assocs. v. Sholodge, Inc.,
967 S.W.2d 810, 814 (Tenn. Ct. App. 1997); . . . Coble Sys.,
Inc. v. Gifford, 627 S.W.2d 359, 362 (Tenn. Ct. App. 1981).
Moreover, any “[a]mbiguous language in a contract is construed
against the drafter.” Jackson v. Miller, 776 S.W.2d 115, 117
(Tenn. Ct. App. 1989).
Healthmart USA, LLC v. Directory Assistants, Inc., No. M2010-00880-COA-R3-CV, 2011
WL 1314662, at *2 (Tenn. Ct. App. M.S., filed April 6, 2011).
A word or expression in the contract may, standing alone, be
capable of two meanings and yet the contract may be
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unambiguous. Thus, in determining whether or not there is such
an ambiguity as calls for interpretation, the whole instrument
must be considered, and not an isolated part, such as a single
sentence or paragraph. The language in a contract must be
construed in the context of that instrument as a whole, and in the
circumstances of that case, and cannot be found to be ambiguous
in the abstract.
Fisher v. Revell, ___ S.W.3d ___, 2009 WL 3103796 (Tenn. Ct. App. W.S., filed Sept 30,
2009)(appeal denied March 15, 2010)(quoting 77 C.J.S. Contracts § 304)
Upon consideration of the above principles, we conclude that the Declaration is
ambiguous. It identifies only one subdivision – a “subdivision known as Timberlake Estates,
Phase One.” The subdivision is expressly limited by the language of the document to
“Timberlake Estates, Phase One” as reflected on a plat that shows exactly 20 lots, which plat
recites that it is a map of “TIMBERLAKE ESTATES, PHASE I LOTS 1 [THRU] 20.”
(Capitalization in original.) A reasonable reader of the document could conclude that
although there might be additional “phases” to come, those phases will be part of another
subdivision.
Tribell attempts to make much of the idea that the term “Phase One” implies that other
phases will follow. This is his primary argument that the Declaration is unambiguous and
he must win. In this regard, his counsel cross-examined several of the Plaintiffs strenuously
with a dictionary definition of the term “phase.” However, as we have indicated, we believe
the inclusion of the words “Phase One” as part of the nomenclature of the only subdivision
identified in the Declaration and the plat suggests to a reasonable reader that this subdivision
is limited to the 20 lots laid out on the plat. To illustrate our point, it will be helpful to
imagine the Declaration and the plat had omitted the words “Phase One.” Thus, the
Plaintiffs would have bought lots in a “subdivision known as Timberlake Estates,” further
identified in the plat as “TIMBERLAKE ESTATES . . . LOTS 1 [THRU] 20.”
(Capitalization in original.) The buyer of a lot in our imaginary scenario may well have been
on notice that more lots would be added to the subdivision. The natural and ordinary
meaning of the nomenclature of the actual subdivision, however, implies that it is limited to
20 lots.
Of course, we cannot stop with the language that names and identifies the subdivision.
We must examine the entire document. The document goes on to state the “intention and
purposes” behind the Declaration to be “the benefit and protection of the present owners or
future purchases of a lot or lots in this subdivision.” (Emphasis added). This phrasing ties
directly into the name and identification of the subdivision as “Timberlake Estates, Phase
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One.” A reasonable purchaser of a lot in “Timberlake Estates, Phase One” could read all the
language we have discussed thus far as suggesting that the Declaration is for their benefit
alone.
Tribell argues that the Plaintiffs were on notice that their rights were not exclusive
from the following language in paragraph 14 of the Declaration: “property owners should be
aware that this launching and parking area may be used by the present owners and owners
of lots and property obtained from these developers.” We agree with the Plaintiffs, however,
that at best the language is ambiguous. Tribell was identified as the owner in the Declaration
which was recorded before the auction. Thus, on the day of the auction he was the “present
owner.” He was identified on the plat as the owner. Potential purchasers on the day of the
auction were therefore on notice that Tribell, and some subset of purchasers from Tribell,
would have the right to use the boat ramp. The term “developer” was not defined in any
manner within the Declaration. It was imminently reasonable for a potential purchaser of one
of the 20, actually 19, lots to read the word “developer” to mean the “developer” of the only
subdivision identified anywhere in the Declaration, i.e., the “subdivision known as
Timberlake Estates, Phase One” consisting of 20 lots. The trial court built upon this thought
with consideration of the circumstance that some lots in “Timberlake Estates, Phase One”
were sold after the auction. Thus, for the post-auction purchases, “present owners” included
the purchasers at the auction, and the new purchasers became “owners of lots and property
obtained from these developers.” This was determined by the trial court to be a reasonable
interpretation, and the most sensible, interpretation of the Declaration.
We do not agree with Tribell that the trial court found the Declaration to be
unambiguous. We have scoured the memorandum opinion and the judgment and do not see
that express finding. Even if the court had, however, found the language to be unambiguous,
there was no error in looking to the circumstances under which the lots were sold. Health
Mart USA, 2011 WL 1314662 at *2. The circumstances that the court found persuasive
include the advertisement that brought the bidders to an “absolute auction.” As the trial court
correctly observed, the ordinary meaning of such terminology is that the high bidder takes
whatever is put on the auction block, with nothing held back by the seller. Bidders and
purchasers were told that all “20 fabulous tracts,” which was the number of lots identified
in the Declaration and the plat as the full measure of the subdivision, would be up for sale.
They were explicitly told that Tribell would build a boat ramp and parking area at his
expense. They were told both orally and in writing that there was “[p]rivate parking” for the
owners of Timberlake Estates. It is true that the flyer does not employ the words “Phase
One,” which we have read as limiting the scope of the subdivision. However, in addition to
the brochure, the purchasers were given a copy of the Declaration, which limited the
definition of the subdivision to 20 lots. We agree with the trial court that a reasonable
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purchaser would think that “Timberlake Estates” as referenced in the brochure was the
twenty-lot subdivision described in the Declaration and the plat.
After hearing the proof, and considering the circumstances of the sale, including the
terminology of the Declaration, the trial court concluded that “the [P]laintiffs are reasonably
entitled to believe that their launching area was only for their twenty tracts of land.” One of
the circumstances that work in the Plaintiffs’ favor that we have not yet mentioned, is that
the Declaration was drafted by Tribell. See Jackson v. Miller, 776 S.W.2d at 117. We
conclude that the case was, indeed, in a posture for the trial court to make a finding of fact
as to the meaning of the Declaration. We further conclude, and so hold for the reasons we
have stated above, that the evidence does not preponderate against the court’s findings.
Tribell argues that the court’s interpretation must be in error because it contravenes
the law of easements. Tribell argues that the boat ramp and parking area were not conveyed
from Tribell to the Plaintiffs and that at most they took an easement to use the facilities
through the language of the Declaration. The argument continues that since the Plaintiffs
took only an easement, Tribell retained ownership of the facilities at issue, including the right
to grant additional easements. He also argues that the law will not presume that one
easement is exclusive of the right to grant additional “non-interfering easements.” We note
that, for the most part, Tribell relies on a treatise rather than Tennessee cases. We need not
decide today whether the treatise correctly states the law of this State because Tribell cannot
get past the qualifier “non-interfering.” The proof in this case is that the second auction was
for 250 acres of land that could be further subdivided after a relatively short waiting period.
The lots in “Phase One” range in size from approximately one-half acre to one acre. Tribell
criticizes the trial court for stating that eventually the “private” facility, if opened to all
potential purchasers from Tribell, would be subject to use by “two hundred and fifty others
who are going to come along.” We believe that the court simply made a permissible
inference based on the facts before it. The court specifically found that unless limitations
were placed on the easement, the Plaintiffs’ “private” facilities would be devolve into
“practically no access,” or little more than “having public access.” Again we conclude that
the evidence does not preponderate against the court’s findings.
Tribell next argues that the trial court erred in not requiring the Plaintiffs to join as
necessary parties all the owners of lots outside Phase One. See Tenn. R. Civ. P. 19.01 (“ A
person who is subject to service of process shall be joined as a party if . . . the person claims
an interest relating to the subject of the action and is so situated that the disposition of the
action in the person’s absence may . . . as a practical matter impair or impede the person’s
ability to protect that interest . . .”). Tribell argues that their rights were necessarily affected
by the court’s judgment because their deeds also are subject to the Declaration. The
Plaintiffs point out that neither in a pleading nor at the trial on the merits did Tribell ever
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raise the issue of missing necessary parties. Even if the issue is pleaded, it must be brought
to the attention of the trial court no later than at the trial on the merits so that the trial court
can make a determination as to whether the purported necessary party is truly needed in the
case. Griswold v. Income Properties, II, 880 S.W.2d 672, 678 (Tenn. Ct. App. 1993). The
issue cannot be held as the proverbial “ace in the hole” to be played on appeal. Id. Tribell’s
failure to call the issue to the attention of the trial court constitutes a waiver of the issue. Id.
Tribell’s final argument is that “the Opinion and Order both failed to set out the
court’s findings of fact and conclusions of law.” Although he recites the controlling
language in Tenn. R. Civ. P. 52.013 , he fails completely to explain how the memorandum
opinion is deficient. If a party does not adequately brief an issue on appeal, the issue is
waived. Childress v. Union Realty Co., 97 S.W.3d 573, 578 (Tenn. Ct. App. 2002).
Although we could treat the issue as waived for lack of adequate briefing, we briefly address
it. Our discussion of the court’s findings above show that “his findings as a whole cover all
relevant facts necessary to a determination of the case.” Hodge v. Provident Life And Acc.
Ins. Co., 664 S.W.2d 297, 300 (Tenn. Ct. App. 1983). Thus, the court’s opinion satisfies the
purpose of the rule. Id. Further, even the refusal to make requested findings is not reversible
error where, as here, the record furnishes the party challenging the judgment with all the
information needed to challenge the judgment. Bruce v. Bruce, 801 S.W.2d 102, 105 (Tenn.
Ct. App. 1990); see Tenn. R. App. P. 36(b).
V.
The judgment of the trial court is affirmed. Costs on appeal are taxed to the
appellants, Daniel J. Tribell, and wife, Ruby Tribell, as Trustees of the Daniel J. Tribell and
Ruby Tribell Living Trust. This case is remanded, pursuant to applicable law, for collection
of costs assessed by the trial court.
_______________________________
CHARLES D. SUSANO, JR., JUDGE
3
The pertinent language in Tenn. R. Civ. P. 52.01 is as follows:
In all actions tried upon the facts without a jury, the court shall find the
facts specifically and shall state separately its conclusions of law and direct
the entry of an appropriate judgment. . . . If an opinion or memorandum
decision is filed, it will be sufficient if the findings of fact and conclusions
of law appear therein. . . .
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