Coolidge v. Keene

614 S.W.3d 106

John E. COOLIDGE, Jr.

v.Elizabeth M. KEENE, et al.

No. E2019-01278-COA-R3-CV

Court of Appeals of Tennessee, Eastern Section, AT KNOXVILLE.

Assigned on Briefs April 15, 2020

FILED June 12, 2020

Adam U. Holland and Chanse J. Hayes, Chattanooga, Tennessee, for the appellant, John E. Coolidge, Jr.

William H. Horton, Chattanooga, Tennessee, for the appellees, Elizabeth M. Keene and Christopher P. Keene, II.

D. Michael Swiney, C.J., delivered the opinion of the court, in which Andy D. Bennett and Carma Dennis McGee, JJ., joined.

OPINION

D. Michael Swiney, C.J.

This appeal concerns whether certain easements were abandoned. John E. Coolidge, Jr. ("Mr. Coolidge") is a neighbor of Elizabeth M. Keene ("Ms. Keene") and Christopher P. Keene, II ("Mr. Keene") ("the Keenes," collectively). Pursuant to recorded easements, the Keenes may use a driveway to access an old garage encroaching on Mr. Coolidge's property. However, the garage was damaged by fire many years ago and never repaired or rebuilt by the Keenes’ predecessors. When the Keenes sought to repair or rebuild the garage, Mr. Coolidge sued them in the Chancery Court for Hamilton County ("the Trial Court"). Mr. Coolidge argued that both the driveway and encroachment easements had been abandoned, largely because the garage was in ruins for such a long time. A bench trial was held. The Trial Court found that, notwithstanding the passage of time, the easements had not been abandoned, and the Keenes could proceed with their plans. Mr. Coolidge appeals, and the Keenes raise their own issues as well. Discerning no reversible error, we affirm the judgment of the Trial Court in all respects.

Background

Mr. Coolidge owns the property located at 1113 Hanover Street, Chattanooga, Tennessee ("1113 Hanover"). The Keenes’ property, 1115 Hanover Street, Chattanooga, Tennessee ("1115 Hanover"), borders Mr. Coolidge's property. Located partially on 1115 Hanover and partially on 1113 Hanover are the ruins of an old block garage that had been damaged by fire in 1992, at the latest. A driveway on 1113 Hanover leads up to the garage ruins.

Before 1975, both 1113 Hanover and 1115 Hanover were owned by the Coolidge family. In January 1975, the owners of the Coolidge property granted an easement to Richard E. Hudson and Marcia S. Hudson titled "Driveway Easement and Easement for Encroachment of Garage." In April 1975, 1115 Hanover was sold to the Hudsons. The deed referred to the easement thusly: "TOGETHER WITH driveway easement and easement for encroachment of garage ..." The easement provided, in part:

WHEREAS, the grantee herein is purchasing Lot 9 [1115 Hanover], Block 6, said Subdivision and appurtenant to said lot is a garage encroaching onto said Lot 8 [1113 Hanover], and access to said garage is over an existing concrete drive located on said Lot 8; and

WHEREAS, it is the purpose of this instrument to grant unto said grantees an easement over said Lot 8, and an easement for the encroachment of the garage onto said Lot 8.

NOW, THEREFORE, IN CONSIDERATION of One ($1.00) Dollar and other good and valuable considerations paid, the receipt of all of which is hereby acknowledged, We, CHARLES E. COOLIDGE, WALTER P. COOLIDGE, JR., and MARY COOLIDGE CISSNA, Devisees under the Will of Walter P. Coolidge, Sr., Deceased, do hereby sell, transfer and convey unto RICHARD E. HUDSON and wife, MARCIA S. HUDSON, a perpetual easement for purposes of egress and ingress over and along an existing driveway along the East line of said Lot 8, from the Northeast line of Hanover St. to the garage now located partially on said Lot 8 and partially on said Lot 9.

ALSO CONVEYED HEREIN is a perpetual easement over that part of Lot 8 upon which a block garage is now located, said easement to be 13 feet by 45.5 feet, as shown by survey of Hopkins-Morton Engineering Company, Inc., dated December 26, 1974.

1115 Hanover has changed ownership multiple times. In November 2017, the Keenes—the current owners—bought 1115 Hanover. By the time the Keenes moved in, the garage had been in ruins for many years. Meanwhile, 1113 Hanover was sold to Mr. Coolidge by his grandfather in December 2015. Mr. Coolidge's deed contained the following language: "SUBJECT TO Driveway Easement and Easement for Encroachment of Garage."

When Mr. Coolidge found out that the Keenes were planning to repair or rebuild the garage, Mr. Coolidge tried to obtain a permit to demolish what was left of the garage. He was unsuccessful. The parties thereafter received notice of the garage's condemnation. The Keenes then obtained a permit to repair or rebuild the garage. Mr. Coolidge was, as he is now, opposed implacably to any attempts to restore the garage. In November 2018, Mr. Coolidge commenced this lawsuit by filing his Verified Complaint for Declaratory Judgement to Quiet Title and for Restraining Order against the Keenes in the Trial Court. In December 2018, the Keenes filed an answer and counterclaim. This matter was tried in May 2019. We next summarize the pertinent testimony from trial.

Timothy Dodd ("Mr. Dodd"), a licensed civil engineer, testified as an expert witness for Mr. Coolidge. Mr. Dodd evaluated the abandoned garage structure and prepared a report on it. Mr. Dodd testified to what was left of the garage:

Masonry walls that are failing and failed footings. That's basically it. It appears that whatever masonry was above the level that remains was tossed into the center. You can see a lot of rubble and blocks thrown in there. I assume the wood frame structure burned completely out and was removed at some point in the last 20 or 30 years.

In Mr. Dodd's view, if one wished to rebuild the garage, "[y]ou would have to completely tear that out and place new footings and start from scratch."

Ben Hagaman ("Mr. Hagaman"), a licensed contractor, testified for the Keenes. Mr. Hagaman stated that he could restore the garage. Mr. Hagaman testified that one option was to "put rebar down in the CMU cells, fill them with concrete" and "dig a footing or a slab on the inside of that structure, clean out what's in there, and dig a footing or a slab on the inside of that and then build, basically, off the inside of those walls." However, Mr. Hagaman testified that the better option would be to start over from scratch. Mr. Hagaman estimated the cost of rebuilding the garage to be somewhere in the vicinity of $50,000 to $80,000.

Recalled to the stand on rebuttal, Mr. Dodd stated that Mr. Hagaman's restoration plan was a "very poor approach." Mr. Dodd emphasized, again, the great difficulty involved in attempting to restore the garage. Mr. Dodd testified: "[A]t some point, you're going to cast concrete against an already failing and laterally moved wall; so you're going to have to shore that up. Well, to shore it up, you're going to be 10 feet over into Mr. Coolidge's property to do that."

Mr. Coolidge testified, also. Mr. Coolidge used the driveway to access the back of his property. In late 2017, he began having issues with the Keenes parking vehicles in the driveway. Mr. Coolidge testified to his view that the garage and driveway easements were long abandoned:

Q. Are you agreeable for the Keenes to come upon your property outside the easement area to rebuild the garage?

A. No.

Q. What are you asking [the] Court to do for you today?

A. Well, I'm asking the Court to remove the cloud over my title. This garage easement document is not -- the driveway easement and the easement for the encroachment of the garage is not what -- the way it's been used for the last 30 years is not what the original agreement was about. The building of the new structure, poured-concrete foundation, all of that is not what the original bargainers -- when they came to this agreement, that's not what the original bargain was about. So I'm asking the Court to clear my title and do away with this abandoned easement.

The deposition of Marcia Butler (the former Marcia S. Hudson) ("Ms. Butler"), a previous owner of 1115 Hanover, was entered into evidence. The garage had caught on fire when she and her husband lived at 1115 Hanover. Ms. Butler testified: "[O]ur insurance paid us for the garage. But it was not enough money to build the garage back. And they didn't give us the money. The money went to the mortgage company because the garage secured the loan for the house." Ms. Butler and her then-husband continued to use the driveway after the garage burned. However, they never rebuilt the garage during their time at 1115 Hanover.

Another deposition was entered into evidence, this time of Aaron Gustafson ("Mr. Gustafson"). Mr. Gustafson bought 1115 Hanover in 2009 and later sold it to the Keenes. Mr. Gustafson testified to the measures he took to "shore up" the garage and reclaim the driveway during his period of ownership:

Q. But apart from consulting with an architect, again, you would agree that you did not rebuild the garage?

A. Yes, we did not rebuild the garage.

Q. And so at the time that you sold -- other than the shoring up that you discussed earlier, at the time that you sold 1115 -- or conveyed 1115 Hanover Street to the Keenes, the garage foundation and remains were essentially as they were at the time that you had purchased the property?

A. Yes, apart from the shoring up, yes.

Q. When you talk about shoring up, you're talking about the support -- I'll just characterize them as support rods that were propped up against the foundation to prevent a portion of the foundation from collapsing?

A. Yes, we did that. And then I believe at least two times over the course of owning the property we sent in landscaping crews to clear the trees that had grown inside, with the underside of the foundation. So I don't know if that would be considered additional work to shore up or protect the property, but we did do that at least twice over the course of owning the property.

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Q. Now, I understand you didn't do anything as far as shoring up -- other than the shoring up of the wall, you didn't do anything back

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