Jahn v. Christopher L. Candler, Trust Fed. Credit Union, Weiss Cummins, PLLC (In re Eicher)
| Decision Date | 21 July 2017 |
| Docket Number | No. 1:12–bk–10283–NWW,Adv. No. 1:17–ap–01001–NWW,1:12–bk–10283–NWW |
| Citation | 574 B.R. 659 |
| Parties | IN RE: David Harlan EICHER, Joyce Elaine Eicher, Debtors Richard P. Jahn, Jr., Trustee, Plaintiff v. Christopher L. Candler, Trust Federal Credit Union, Weiss Cummins, PLLC, Defendants |
| Court | U.S. Bankruptcy Court — Eastern District of Tennessee |
Nancy A. Cogar, Law Offices of Nancy A. Cogar, Esq., David L. Moss, Chattanooga, TN, for Plaintiff.
David J. Fulton, Scarborough & Fulton, Chattanooga, TN, Lawrence W. Kelly, Elizabeth B. Padgett, Fidelity National Law Group, Atlanta, GA, Elizabeth Ann Cash, Weiss Spicer Cash PLLC, Memphis, TN, for Defendants.
This adversary proceeding is before the court on the Motion for Partial Summary Judgment filed by the plaintiff and on Defendants Candler and Trust Federal Credit Union's Motion for Summary Judgment, both of which were filed on June 30, 2017.1 Having considered the motions, supporting and opposing briefs, and statements of undisputed material facts and responses, the court will grant the defendants' motion in part and deny the plaintiff's motion.
On September 3, 2002, debtors David Harlan Eicher and Joyce Elaine Eicher purchased lots 187–189 of the Lakewood Village subdivision in Rhea County, Tennessee, having the address 250 Dogwood Court, Spring City, Tennessee, from Jim and Carla Metzger. The purchase was financed by Countrywide Home Loans, Inc. (later EverBank), which received a deed of trust to secure repayment of the loan. The property is located on an inlet of Watts Bar Lake, with the lake on one side and Dogwood Court on the other. In 2003, the debtors built a boathouse off of lot 187, which they accessed via a road or driveway that runs along the lake starting at what the plaintiff calls Cove Road.
On June 23, 2004, the debtors purchased lot 186 of Lakewood Village subdivision, which has the address 110 Dogwood Court, from Linda Hurt, f/k/a Linda Hudson, and John Hurt. That lot adjoins 250 Dogwood Court, specifically, subdivision lot 187. In March 2005, the debtors conveyed the property to themselves as trustees of The David H. Eicher Revocable Living Trust and The Joyce E. Eicher Revocable Living Trust. The debtors then built a house on lot 186 in 2005 and 2006, completing it toward the end of 2006. Utility lines to the house were installed under the lakefront driveway, and the debtors continuously used the driveway to access the house. On October 30, 2008, the Eicher trusts executed a deed of trust in favor of Sidney W. Breaux of Weiss Spicer Cash, PLLC, as trustee for Southeast Bank & Trust. To assist the reader, below is the sketch of the area long the lake inlet that was attached to the complaint initiating this proceeding:
On January 18, 2012, the debtors filed a voluntary petition for relief under chapter 13 of the Bankruptcy Code. On April 9, 2014, the court entered an agreed order signed by counsel for the debtors, for EverBank, and for the chapter 13 trustee, which afforded the debtors to February 7, 2014, within which to bring the mortgage current, failing which, "EverBank shall be relieved from the Automatic Stay provisions of 11 U.S.C. 362(a) forthwith, and may proceed with any state remedies as to the real property commonly known as 250 Dogwood Court, Spring City, Tennessee 37381." The debtors did not bring the account current and, on February 12, 2015, the property was sold at foreclosure and transferred by the trustee named in the deed of trust to Federal National Mortgage Association.2 On August 18, 2015, FNMA sold the property to defendant Christopher L. Candler, with the purchase financed by defendant Trust Federal Credit Union; defendant Weiss Cummins, PLLC (formerly Weiss Spicer Cash, PLLC), is the trustee under the deed of trust. The bankruptcy estate retains ownership of 110 Dogwood Court. Beginning in December 2015, Mr. Candler has taken various actions to block access to 110 Dogwood Court via the lakefront driveway. On September 22, 2016, the debtors' chapter 13 case was converted to a case under chapter 7 of the Bankruptcy Code, and the plaintiff was appointed chapter 7 trustee. On January 23, 2017, the plaintiff initiated this adversary proceeding, seeking various remedies primarily for Mr. Candler's interference with what the plaintiff asserts is an implied easement or easement by necessity to use the lakefront driveway, alleging that it is not feasible to build a driveway to the house on lot 186 from Dogwood Court. The plaintiff also sought injunctive relief and, after conducting an evidentiary hearing on February 13, 2017, the court entered an order denying preliminary injunctive relief, primarily because the plaintiff has an adequate remedy at law.
On May 15, 2017, the court granted Mr. Candler's motion to compel the trustee to join as defendants Trust Federal Credit Union and Weiss Cummins, which are the lender and deed of trust trustee on 250 Dogwood Court. Ten days later, the plaintiff filed an amended complaint to join the additional defendants, which also changed some of the original complaint's factual allegations. Count I of the amended complaint asserts that Mr. Candler violated the automatic stay by interfering with the easement across his property and by sawing off the stairs and the boathouse ramp attached to the house on 110 Dogwood Court. Count II seeks to reform the "relevant deeds and Deeds of Trust" to reflect an easement in favor of 110 Dogwood Court for the driveway over 250 Dogwood Court and for utility lines under the driveway or, alternatively, an order declaring an implied easement, common-law easement by necessity, or statutory easement by necessity pursuant to section 54–14–102 of the Tennessee Code Annotated. Count III seeks an injunction prohibiting Mr. Candler's interference with the alleged easement. Count IV seeks damages for conversion of personal property located on the boathouse as a result of Mr. Candler's interference with the alleged easement, and damages for the sawing off of the stairs and boathouse ramp.3
Also on February 15, 2017, the court granted Mr. Candler's motion for leave to amend his answer to assert a counterclaim against the plaintiff, and also against Southeast Bank & Trust and Weiss Spicer Cash, which are the lender and deed of trust trustee on 110 Dogwood Court. The counterclaim asserts that the plaintiff or his predecessors in interest have constructed a retaining wall, septic tank system, satellite disk, private utilities, and other improvements within five feet of the property line between 110 and 250 Dogwood Lane or perhaps even across the line on Mr. Candler's property, in violation of the Lakewood Village restrictive covenants. The counterclaim seeks injunctive relief or, alternatively, an award of damages.
The plaintiff seeks entry of a summary judgment declaring that the bankruptcy estate includes an easement by implication for egress and ingress and for utility usage for the benefit of 110 Dogwood Court, the dominant tenement, over 250 Dogwood Court, the servient tenement, and enjoining Mr. Candler from interfering with the easement. He does not seek summary judgment establishing a statutory easement by necessity under T.C.A. 54–14–101 et. seq. On the other hand, the defendants seek entry of a summary judgment declaring that no easement by implication exists over 250 Dogwood Court or that any such easement was terminated upon the foreclosure on the property or was abandoned by the bankruptcy estate. The defendants contend that the plaintiff intends to abandon his claim to a statutory easement by necessity. However, to date the plaintiff has not amended his complaint or otherwise signaled his intent to do so.
A party is entitled to summary judgment if "the movant shows that there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Bankr. P. 7056 ; Fed. R. Civ. P. 56(a). When deciding a motion for summary judgment, the court will construe all reasonable inferences in favor of the non-moving party. Waeschle v. Dragovic , 576 F.3d 539, 543 (6th Cir. 2009) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) ). Where the evidence would permit a reasonable jury to return a verdict for the non-moving party, a genuine issue of material fact exists and summary judgment must be denied. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
In the face of a summary judgment motion, the nonmoving party may not rest on its pleadings, but must come forward with some probative evidence to support its claim. Celotex v. Catrett , 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ; 60 Ivy St. Corp. v. Alexander , 822 F.2d 1432, 1435 (6th Cir. 1987) (). In the words of Rule 56(c)(1) of the Federal Rules of Civil Procedure, "[a] party asserting that a fact ... is genuinely disputed must support the assertion by ... citing to particular parts of materials in the record ... or ... showing that the materials cited do not establish the absence ... of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact."
The parties agree that the determination of whether an easement exists in this case requires application of Tennessee law. "In Tennessee, an easement may be created in several ways, including: (1) express grant, (2) reservation, (3) implication, (4) prescription, (5) estoppel, and (6) eminent domain." Ingram v. Wasson , 379 S.W.3d 227, 238 (Tenn. Ct. App. 2011). Resolution of the pending motions requires the court to delve into Tennessee law regarding the creation of...
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