Hixson v. American Towers, LLC, 110719 TNCIV, E2019-00335-COA-R3-CV

Docket Nº:E2019-00335-COA-R3-CV
Opinion Judge:CHARLES D. SUSANO, JR., JUDGE
Party Name:CARL WAYNE HIXSON ET AL. v. AMERICAN TOWERS, LLC
Attorney:Marc H. Harwell, Chattanooga, Tennessee, for the appellant, American Towers, LLC. Andrew F. Tucker, Dayton, Tennessee, for the appellees, Carl Wayne Hixson, Michael Eric Hixson, and All Things Fast Motorsports, LLC.
Judge Panel:Charles D. Susano, Jr., J., delivered the opinion of the court, in which Thomas R. Frierson, II, and Kenny W. Armstrong, JJ., joined.
Case Date:November 07, 2019
Court:Court of Appeals of Tennessee

CARL WAYNE HIXSON ET AL.

v.

AMERICAN TOWERS, LLC

No. E2019-00335-COA-R3-CV

Court of Appeals of Tennessee, Knoxville

November 7, 2019

Session August 20, 2019

Appeal from the Chancery Court for Hamilton County No. 16-0804 Jeffrey M. Atherton, Chancellor

Wayne Hixson and Eric Hixson (the Hixsons) granted a perpetual, exclusive easement to American Towers, LLC (ATC)1 to operate a telecommunications system at the top of a hill on their property. For many years, the hill experienced progressive slope failures. A recent mudslide caused thousands of dollars in property damage to the Hixsons and All Things Fast Motorsports, LLC (All Things Fast), a metal fabrication business owned by Wayne Hixson's grandson. ATC spent thousands of dollars to move a generator away from the slope failure. The parties fear that the cell tower could collapse. In the trial court, the Hixsons and All Things Fast filed a complaint seeking a declaratory judgment regarding the parties' respective maintenance responsibilities under the easement agreement. They also sought damages arising from ATC's alleged breach of the easement agreement and other tortious conduct. ATC filed a counterclaim alleging similar causes of action. After a bench trial, the court ruled that ATC has a duty to maintain the easement and that the Hixsons have a duty to maintain the surrounding hillside for the benefit of ATC. Because the court found that the Hixsons and ATC were equally at fault for failing to prevent the recent mudslide, the court rejected their claims of negligence and breach of the easement agreement. However, the court awarded $1, 245.20 to All Things Fast on its negligence claim. The court also awarded $179.99 to the Hixsons on their trespass claim. Finally, the court ordered the Hixsons and ATC to pay half of the costs necessary to stabilize the hill in accordance with the remediation plan proposed by the Hixsons. ATC appeals. We modify the trial court's declaratory judgment, vacate the award of damages to All Things Fast, and remand for further proceedings. The judgment is affirmed in all other respects.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed as Modified; Case Remanded

Marc H. Harwell, Chattanooga, Tennessee, for the appellant, American Towers, LLC.

Andrew F. Tucker, Dayton, Tennessee, for the appellees, Carl Wayne Hixson, Michael Eric Hixson, and All Things Fast Motorsports, LLC.

Charles D. Susano, Jr., J., delivered the opinion of the court, in which Thomas R. Frierson, II, and Kenny W. Armstrong, JJ., joined.

OPINION

CHARLES D. SUSANO, JR., JUDGE

I.

Wayne Hixson and his son, Eric Hixson, are licensed general contractors. They reside in Hamilton County. In 1996, the Hixsons decided to get involved in ARCA racing.[2] They purchased real property in Soddy-Daisy and built a racecar shop. The racecar shop is situated at the foot of a large hill that runs along the eastern edge of the property.

In February 1998, the Hixsons entered into a lease agreement with Chase Telecommunications, Inc. (Chase). The lease agreement gave Chase the exclusive right to use a portion of the hill on the Hixsons' property to "provid[e] communication services." A few months later, Specialty Constructors, Inc. (Specialty Constructors) constructed a cell tower and installed other related equipment on top of the hill.3 An access road leading to the cell tower was also constructed. From the public highway, the access road is steeply uphill; then, after a dogleg to the left, the access road slopes downhill toward the cell tower for approximately 190 yards.

For the purposes of this appeal, it is undisputed that the builder of the cell tower dug approximately thirty feet into the hill and left between six and nine feet of extracted fill dirt on top of the hill. Excess dirt from construction of the access road was also placed on top of the hill or thrown over the edge. Wayne Hixson claims that he expressed concerns about erosion and water runoff during the initial construction of the cell tower. In the end, nothing was done about the fill dirt. The builder leveled off the hill, constructed the cell tower, and installed other related equipment. Sometime between 1998 and 2000, ATC took over this telecommunications system by sub-lease from Chase or from one of its successors-in-interest.

Eric Hixson testified that, in late 1999 or early 2000, part of the hill "broke off" and slid toward the racecar shop. He testified that "another mudslide" occurred in 2001. According to Wayne Hixson, "every time there was a big rain," the Hixsons would "have mud coming down through there on the rest of [their] property[.]" According to the Hixsons, water flows down the access road toward the cell tower and causes erosion of the hill. Wayne Hixson claims that he called ATC numerous times asking for their help, but he did not submit those requests in writing. According to the Hixsons, ATC was not responsive.

In 2003, the Hixsons attempted to take remedial action. They began constructing an RV garage directly below the cell tower, where the worst mudslides were occurring. They designed the rear wall of the RV garage to serve as a retaining wall. The Hixsons also installed a French drain around the perimeter of the RV garage to divert water runoff. The first four bays of the RV garage were completed in 2004.

Despite these efforts, the mud kept coming. In 2007, the Hixsons constructed another four bays adjacent to the existing RV garage. The Hixsons testified that they used a "skid steer Bobcat" to remove about four feet of dirt from the area in order to build the second part of the garage. The Hixsons insisted that they only excavated loose dirt that had eroded down the hillside and that they did not dig into the toe of the hill, which, they said, was marked by several large boulders. Over the next few years, mud continued sliding down the hill and piling up behind the RV garage.

In July 2010, the Hixsons and ATC executed an easement acquisition agreement. In that agreement, ATC promised to pay the Hixsons $496, 500 in exchange for two easements: (1) a "perpetual, exclusive easement" to use the land beneath and around the cell tower; and (2) an "access and utility easement" to use the road leading to the cell tower. The Hixsons also promised to assign ATC all of their rights and obligations as landlords under the 1998 lease agreement. After closing, the parties recorded an easement agreement in the Register's Office of Hamilton County. The easement agreement sets forth the parties' rights and responsibilities in greater detail.

In 2013, ATC received complaints from its customers about ruts in the access road. In response, ATC construction manager Dale Melton sent ATC field operations technician Curtis Utz to inspect the property. Mr. Utz testified that he had inspected the property once per year since 2004 and had taken about fifty photographs of the cell tower and access road. Mr. Melton also hired a third-party company to inspect the property. According to Mr. Melton, the third-party company notified him in May 2014 that the hill appeared to be failing. ATC claims this was its first notice of the hill failure, despite the Hixsons' claims to the contrary and despite the fact that Mr. Utz had conducted annual inspections of the property for about a decade.

ATC retained GEOServices, LLC (GEOServices) to perform a geotechnical exploration "to characterize the subsurface conditions for the existing slope[.]" On August 5, 2014, GEOServices published a report of its findings and recommendations. The report confirmed that the hill was failing. It recommended the use of soil nails to stabilize the hill. Shortly thereafter, ATC asked GEOServices to provide a design for a soil nail remediation plan that ATC could send to potential contractors. On August 27, 2014, GEOServices published a report of its soil nail remediation plan.

In December 2015, Soddy-Daisy experienced an extraordinary amount of rainfall. According to Wayne Hixson, it rained "four or five days in a row" leading up to Christmas. He testified that "the total rainfall was about seven inches" and that it rained "about two inches" on Christmas eve. On Christmas day, the Hixsons discovered that there had been another mudslide. This time, a tree and "about two loads of chert" crashed through the roof of the RV garage. This damaged the RV garage and equipment owned by the Hixsons and All Things Fast. As a precaution, ATC spent about $25, 000 to move a generator away from the slope failure. ATC also placed a tarp over part of the slope.

In 2016, ATC finally got around to repairing the access road. Patrick Barry, ATC's Director of Architectural Engineering, supervised this project. Mr. Barry testified that ATC graded the access road using crusher run, which is designed to withstand erosion. Mr. Barry also testified that ATC dug a ditch along the eastern side of the road and "pitched" the road from west to east so that water would run into the ditch. Finally, ATC constructed a "level spreader" at the end of the access road near the cell tower. The level spreader was designed to collect water from the ditch and discharge it to the east of the Hixsons' property. Dr. James Smoot, a hydrologist, testified that ATC's 2016 improvements were properly designed to direct water away from the Hixsons' property.

On December 7, 2016, the Hixsons and All Things Fast filed their complaint. They sought: a declaratory judgment regarding the parties' maintenance responsibilities under the easement agreement; $40, 000 in damages arising from ATC's alleged breach of the easement agreement and other tortious conduct4; punitive damages; "[a] yet undetermined sum to correct the erosion and water runoff...

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