# FILED Nov. 17, 19 96 Cecil Crowson, Jr . Appellate Court Clerk IN THE COURT OF AP PEALS OF

TENNESSEE MIDDLE SECT ION AT NASHV ILLE

MARY J . DROZD , ) ) Plaintiff /Appella nt, ) NO. 01A01-9408-CV-00366

) VS. ) Davidson County Sixth Circuit ) No. 91C-189 HER MITA GE V ILLA ) CONDOMI

NIU MS HOMEOWN

ERS ) ASSOCI ATION, INC., HI

LL SBORO ) PROPERTY MANAGEMENT ) COMPANY, INC., and ) GARY WAL

LER, ) ) Defend ants/Appe

llees, )

) and ) ) STATE OF TENNESSEE, by a nd ) through CHARLES W. BURSON, ) Attorney Gene

ral and Reporter, ) ) Intervenor. ) APPEAL FROM THE SI XTH CIRCUI

T COURT FOR DAVIDSON COUNTY AT NASHVIL

LE, TENNESSEE THE HONO RABL

E THOMAS W. BROTHER S CLYDE PAUL

HOLL AND 2628 Old Lebanon Road Nashville, Tennessee 37214 ATTORNEY FOR PLAI

NTIFF/APPEL

LANT LUTH ER E. CANTR

ELL , JR. DAVIES, CANTREL

L, HUMPREYS & McCOY 150 Second Avenue, North, Suite 225 P.O. Box 190609 Nashville, Tennessee 37219-0609 ATTORNEY FOR DEFENDANTS/APPEL LEES PAMEL A BI NGHAM B ROUSSARD ASSISTANT ATTORNEY GENERAL ATTORNEY GENERAL' S OFFICE - TAX DI VISI ON 404 James Robertson Parkway, Suite 2121 Nashville, Tennessee 37243-0489 ATTORNEY FOR INTERVEN OR AFFI RMED AND

REMANDED ROBERT E. COR LEW, III SPECIAL JUD GE CONCUR: HENRY F. TODD , JUDGE SAM L. LE WIS, JUDGE2 

### O P I N I O N

From the decision of

the Trial Court

dismissing a portion of the original complaint and from the subsequent decision of the Trial Court gran ting summa

ry judgme

nt for the Defendants as to a

s econd gro und of recovery sought, the Plaintiff was granted an interlocutory appeal to this court. The evidence shows that the Plaintiff and her dau gh ter purchased a condominium in the Hermi tage Villa Condominiums for the purpose of a residencefor the Pl aintiff. The cond ominiums had be en de ve lo pe d b y De fe nd an t G ar y Wa ll er , a nd co ns is te d o f s om e n in et y- six duplex units. Defendant

Hillsboro Property Manag ement Company, I nc. managed the co ndominiu ms, and Hermi tage Village Condominiums Homeowners Association, Inc . is alleg ed to have been a homeowners association formedto oversee the development of the condominiums. I t is undisputed that on th e evening of Ap ril 11, 199 0, at appr oximately 8:00 p.m., t

he Plaintif

f was att empting to traver se a distanc e of some twenty feet ac ross her yard to the door of

her condominium, aided by the

use of her walker, when one leg of t he walke r sank in a

holein the yard which ha d been created by

a mole or some yard pe st. It is further undispute d that this caused t he Plaintif

f's wa lker to become unstable, causing the Plaintiff to fall to the ground, brea king her hip. The Plaint iff compl a ined to the Court, inter alia, that the provisions of the Uniform Re sidential Landlord and Tenant Act were applicable to this cause, and that the fa ilure of t h e Defend ants to abide by the terms of that act constituted negligence per se. The Trial Court, however, found that the p

rovisi ons of that act expressly exclude its application to condominiums, and dismissed t he portions of the complaint alleging neg ligence due to the alleged f ailure of the Defendants to comply

with the terms of the Uniform Residential Landlord and Tenant Act. Si mi la rl y, the Plaintiff

asserte d that the

Defend ants wer

e negli gent pe

r se due t

o their violation of a

certain Metropolitan Nashville/Davidson County ordinance mandating dimensions for the condominium at issue. The Court, however, granted t he Def endant's Motion for Summary Judgment as to this ground for relief. The Plaintiff now seeks the order of this Courtcausing the Uniform Residential L andlord 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 applic ation to pr opertie s other th an condo miniums. The State3

of Tenness ee inter

vened in t

his action in order to defend the cons tituti onality of t he Uniform Residential Landlord and Tenant Act, as it is written, excluding condominiums from its application. The Plaintiffs further urge the Court to r everse the order gra nting summary judg

ment to the Defendants due to the alleged violation of the metro dr iveway ordina

nce. Th e A ppellant first argues that because of the unique circumstances of the condominium herein, the Unifo

rm Reside

ntial L andlo rd and Tenant Act should apply to this particula r condomini

u m, desp ite the language of the law w hich provides that it does not apply to such residential units. The Appellees as sert that t his issue w as never

raised b efore t

he Trial Court. Certainl y we recognize that it is inappropriate to raise issues on appea l which were not

address ed to the Trial Court. Harrison v. Schrader, 569 S.W.2d 822, 828 (Ten n. 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) cer t. denied (Tenn. 1978). Because the Appellant, however, generally sought the decision of

the Trial Court applying the uniform la

w to the re sidential

unit in que stio n, we fee l comp elled to con sider the Ap pella nt's argume nt. The Uniform Residential Landlord and Te nant Act generally

does n ot apply

to condomini ums because the relationship of landlord and tenant does not exist in such units. A condomini um gener

ally is conside

red to be a unit in wh

ich a numb er of se

parate owners ow n individual units, with

in a multipl e unit

complex, wi

th common a

reas ow ned and ma

intained by a ll

o f the owners as undivided property . The Uniform Residential Landlord and Te nant Act, by contra s t , was passed for the purpose of governing the rights and obligations of landlords who own rental property, a

nd tenants who have no ownership in the property which they occ

upy, but pay a sum to the owner f

or the pr ivilege of occupyin g all or

a portion

of the pr emises f or a per iod of ti me. Tennessee Code Annotated § 66-28-103, 104 (1993). The Uniform Residential Landlord and Tenant Act specifically pr

ovides that it is inapplicable to "occupancy by an owner

of a condominium unit." Tennessee Code Annotated § 66-28-102 (c) (4) (1993). The Appellan

t assertsthat desp ite the la nguag e of the s tatute, it

should be made app licable to the condomini

um unit in question herein. In support of that contention, the Appe llant asserts that the condomini u m units in que stion are separa te duplex un

its, orig inally

designed as rent

al units, which were purchased and developed by the Defendants as a condominium project. Further, th e Appellant asserts t hat the De

fendant s continue to own virtually all of the condominium units, very4

few of the m havi ng b een so ld. Further, the condominium association contemplated by law and initially developed by the

Defendants functioned, if at all, only very briefly , and did n ot, 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 fi nd thes e circumstances sufficient to apply the Unifor

m Resi dential 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 t

hese units over an extended period of time, the evidence is clear that the Appellant herein purchased her own condomini

um, and co

ntinues t o own it. As an owner of her condominium unit, her res ponsibiliti es with regard to the developer, who c ontinues to own a number of other condominiumunits, and other condominium owners is vastly diffe rent than the relation ship betweena ren

ter a nd a l andl ord or pre

misesowne

r. 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 Tena nt Act to be

unconstit utional, in that thos e provisi ons are a pplicabl e only to relationships between landlords and tena nts , 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 classifi cati on whic h rests upon a reasonable basis. Tennessee Constitution , Article XI, Section VIII; C.f., Brentwood Liquors Corporation v. Fox , 496 S.W.2d 4 54 (Tenn . 1973); City o f Chattanooga v. Harris , 442 S.W.2d 602 (Tenn. 1969). We find, ho wever, that ther e is a re asonable basis for a distinction betwe en an owner of a condominium and a renter of an apartment or other rental unit. In a residential rental unit, the obliga tions of the tenant and landlord are totally different from those obli gationsof an owner of a c ondomin ium and othe r condominium owners or the association of condominium owners. A condomi nium owne r of cour se has ma

de an inve stment 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 in ve st me nt an d h as re sp on si bi li ty, ge ne ra ll y, for m aintenance of h is unit. A renter, by contr ast, generally

is more temporary

in nature, and has made little or no investment in the unit which he occupies. Because ther e is no ownership on the part of the renter, the landlord maintains responsibility , generally , for all lon g-ter m maintenance problems , and enjoys the

occupa ncy of the pr emises on ly subject to

a contra ct betwe en the pa

rties.5

While condominium owners and renters may each be required to abide by certai n r ules and regulations within their residential complex, just as homeowners in a subdi vi sion are require d to comply with local municipal ordinances and restrictive covenants within a sub division, renters gener ally enjoy less freedom and independence in the manner in which they utilize their residential unit than those who have made purchases. We theref ore find a reaso nable

basis for the classifications determined by the legislature, and find that the discrimination within the Uniform Residential Landlord and Tenant Act to beproper. It is totally reasona ble to app ly o ne set of

rules to th

e relati onship between a landlord and a tenant , and other rules within the relationship between a condomin ium owner and owners of other

c ondominium s within the residen tial unit. Pr

otection of the rig

hts of re nters, or te nants, whos e rights are more tenuous than those of property owners justifies the passage of a separ ate act applica ble to landlords and tenants. We find the passage of thi s act does not violate the equal protection claus e of th e Unit ed St ate Co nsti tuti on, i n that there i s a legi tima te legi slative purpose behind the passage of the Uniform Residential L andlord 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 circum stances surrounding condomini ums, and the relationship between

a condominium owner a n d other owners. Because of the f actual differences involving these diff erent relation ships, we find th at the leg islature was justi fied in p assing s eparat e acts. Ce

rtainly there is

a strong presumption in favor of legislative actions. Bozeman v. Barker , 571 S.W.2d 279 (Tenn. 1978). Thus, we find th at the Tr ial C ourt wa s justifie d in dismissing alle gationsin this cau se predicated

upon neg ligence pe r se base d upon the Uniform Re sidential

Land lord and Tenant Act. The Appellant also seeks the order of the Court reversing the decision of the Trial C ourt which granted summary

judgment upon the complaint of the Appellant that the Def endants were negligent per se in their violation of two sections of the Metropolitan Nashville Code. The two code sections in ques tion dea l with the sizes of parking lots. Courts may not take judicial notice of munic ipal ordinance s. 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 3 41, 342 (T enn. Ct. App. 1986) perm. app. deni ed; Valle y Forge Ci

vic Le ag ue v. For

d , 713 S.W.2d 665, 669 (Tenn. Ct. App.6

1986) perm. app. denied . The Appellant introduced excerpts from the Metropolitan Code in the Trial Court, whi ch we ha

ve revie wed as a part of the record. A reading of the e xcerpts presented, however, do es no t s ho w t ha t t he or di na nc es co nc er ni ng th e s iz es of dr iv ew ays and parking areas are applica ble to the premises in question. The Trial Court has carefully reviewed the motion filed by the Defendants, and accompany ing affidavits, as well as the response filed by the Plaintiff, and has determinedas a m at te r o f l aw th at th e m un ic ip al or di na nc es do no t a pp ly t o t hese prem ises. We cannot find that the record reflects any facts on this issue which are disputed, nor can we find that the ruling of the Tr ial Court iscontrar

y to the prev ailing la

w. This issu e is withou

t merit. For the reasons stated herein, we affirm the decision of the Trial Court, and remand this caus e for trial upon the remaining issues.

ROBERT E. CORLEW, II I, SPECIAL

JUDGE

CONCUR:

HENRY F. TODD, JUDGE

SAM L. LEWIS, JUDGE

IN THE COURT OF AP PEALS OF

TENNESSEE MIDDLE SECT ION AT NASHV ILLE

MARY J . DROZD , ) )Plaintiff /Appella nt, ) NO. 01A01-9408-CV-00366

) VS. ) Davidson County Sixth Circuit ) No. 91C-189 HER MITA GE V ILLA ) CONDOMI

NIU MS HOMEOWN

ERS ) ASSOCI ATION, INC., HI

LL SBORO ) PROPERTY MANAGEMENT ) COMPANY, INC., and ) GARY WAL

LER, ) ) Defend ants/Appe

llees, )

) and ) ) STATE OF TENNESSEE, by a nd ) through CHARLES W. BURSON, ) Attorney Gene

ral and Reporter, ) ) Intervenor. )

JUDGMENT This cause

came on further to be considered by the Court upon the interlocutory a

ppeal filed by the Plainti ff, and u

pon the br

iefs of b oth parties, the arguments of counsel, and upon the entire record in this cause, from all of which the Court find s that the j udgmen t of the Tr

ial Court s hould b e affirme

d, and tha

t the cau se should b e reman ded to the Trial Cour

t for fur ther pro ceedin g s consiste nt with the

Opinion of

this Court. IT IS TH EREFORE O RDERED tha t the judgment o f the Trial Cou rt is affirmed, and the

cause is remanded to the Trial Court for further proceedings consistent wi th the O pinion of t his Court. Costs of appeal are taxed against the Appellant.

ROBERT E. CORL

EW, III, SPECIAL JUDG E

HENRY F. TODD, JUDGE

SAM L. LEWIS, JUDGE