### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE May 6, 2003 Session EARL M. SHAHAN v. FRANKLIN COUNTY, ET AL 

### . Appeals from the Chancery Court for Franklin County Nos. 16,129 & 16,235 John W. Rollins, Judge

No. M2002-00725-COA-R3-CV - Filed December 30, 2003

T hi s case involves a dispute between Franklin County and the developer and residents of a subdivision over the maintenance of roads in the subdivision. After the county declined the developer’s public dedication of the roads and denied applications for b uilding perm its in the subdivisio n becau se of ina dequate roads, the developer and several property owners filed sep arate suits against the county in the Cha ncery Court f

or Franklin County

to deter mine the r

esponsibi lity for maintaining the roads. The property owners also sought specific performanc e anddamages from the developer. The trial court consolidated the cases and, following a be nch trial, held that the county was not responsible for

maintaining the roads. The trial court also directed the de veloper to bring the roads up to 1990 subdivision standards. The developer asserts on this appeal that there had been an implied public dedication of the roads and, therefore, tha t the county was re sponsible for
ma intai ning them. For

their pa rt, two pr operty owners a ssert tha

t they are ent itled to da

mages in addition to specific performance. We have dete rmined that

the trial court correctly

determined that the roads were

not public roads and that the property owners were

not entitled to damag es as well
as specific performance. However, we have also determined that the trial court should have ordered the deve loper to b ring the roads up t

o the coun

ty’ s curre nt road st andards

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

W IL LI AM C. K OCH , J R ., J., delivered the opinion of the court, in whichB EN H. C ANT RELL , P.J., M.S., and W IL LI AM B. C AIN , J., joined.

Clifton N. Miller andFelicia B. Walkup, Tullahoma, Tennessee, for the appellant, Ear l M. Shahan.

John B. Curtis and Steve E. Smith, C hattanoog a, Te nn es se e, fo r t he ap pe ll ee s, Fr an kl in Co un ty, Tenness ee, Montg omery

Adams, a

nd John W. Wooda

ll. J. Stanley Rogers, Christina Henley Duncan, and Laur

a D. Riddle, Manchester, Tennessee, for the appelle es, Ron Cunning

ham, Linda Hu dson, George Peckinpaugh, Dorothy Peckinpaugh, Jackson Graham, and Joyce Gra

ham.1 In Novem ber 1993 , prior to the coun ty’s rejectio n of the ro ads, M r. Shah an had sold o ne 5.5 -acre tra ct to his

son a nd d augh ter-in-law. T hey co nstructe d a ho me o n this tract.
-2- OPINION

I.
Earl M. Shahan ha s owned a nd opera ted a re al estate

business in Franklin County for ove r fifty years. He had acquired many tracks of real property

over the ye ars, and by November 1989, he ownedapproxima

tely eighty a cres bordering Radio Bea

m Lane and Deer

Creek Lane by inheritance, gift, and purchase. At that time, Radio Beam Lane a nd Deer Creek Lane we

re only unimproved dirt roads running over fields and farmland.

In September 1990, Mr. Shahan and Charles Abbott, one of Frankl in C ounty’s road commissioners, discussed the need for a co nnecting ro ad between Highway 41A and Rock Creek Road. Mr. Abbot

t told Mr. Sh ahan tha

t the coun ty would “try to get a road the re” if he would ob tain
a 50-foot r ight-of -way and make

certain improveme

nts to Radio Beam Lane a nd Deer Creek Lane. Over the nex t three y

ears, Mr . Shahan o

btained t he 50-fo ot right-of-wa

y a nd made $3 7,000 in improveme

nts to Radio Beam Lane

and Deer Creek Lane. He bull doze d the r oads, placed drain age tiles, and cleared and gra

ded the roadbed. In a

ddition, he

record ed ease ments for ingres s and eg

ress for all his property along

Deer Creek L ane and Radio Beam Lane, and he prepared a plat showing a 50-foot right-of-way

for power lines.

On November 30,1993, Mr. Shahan delivered a deed to Mr. Abbott conveying ownership of the rights-o f-w ay for Radio B eam Lane and De er Creek Lane

to Franklin County. Howeve r, the Franklin County Highway Commission declined to accept the deed for the rights-of-w ay , and in ea rly 1994, Mr. Abbott returned the deed to Mr. Shahan. The county declinedto acce

pt the roa ds becau se they fa il ed to me et co un ty s ta nd ar ds . S pe ci fi ca ll y, t he y (1) wer e not wide enough, (2) lacked sufficient gravel, and (3) were not paved wi th asphalt. In addition, the drainag e tiles were inadequate, and th e ditches running along th e roads w ere obst

ructed. Becau se it had d eclined to accept these ro ads, the c ounty

also dec lined to ma

intain them. Howeve

r, the pub lic has us ed both Radio Bea m La ne and Deer Creek Lane as a connector between Rock Creek Road and Highway 41A.

Mr. Shahan continuedto subdivide and sell his property along Radio Beam Lane a

nd Deer Creek Lane even thoug

h Franklin County dec lined to acce pt the roa ds. 1 He adve

rtised the propert y along Deek Creek La

ne as a “perfect setting

for your dr

eam home” and that the tracts he was selling
were “perfe ct bui ldin g sites .” In Octo ber 19 94, Ge orge and Dorot hy Peckin paugh purchased fifteen
acres from Mr. Shahan for $36,000. In February 1997, Linda Hudson and Ron Cunningham purchased

six acres fr om Mr. Shah an for $21,400. Later in 1997, De nnis and Brenda Huprich purchased

five and one-half acres for $17,250. I n September 1998, Jackson and J oyce Graham purchased

nine acres for $27,750, and Larry Eva ns purchased fiveacres and a home from William andSharon Devine, who had purchased the lot from Mr. Shahan in 1995. Mr. Shaha n assure d all of the purchasers that Deer Creek L ane and Radio Beam

Lane would be taken ove r, improved, and
ma in ta in ed by t he co un ty.-3-

The property owne

rs eventually beg an applying for building permits to construct homes on thei r property. T

he Peckinpaughs obtained a building permit in 1996, and Ms. Hudson and Mr. Cunningham

obtained a building permit in October 1997. Thereafte r, Mark Du d ley , Frank

lin County’s building commissioner, declined to issue other buil ding permits because neither the subdivision nor Radio Beam Lane and D eer Creek La

ne had been approved by the planning commission. As a resu

lt of the moratorium on building permits, the Grahamshave be en unable to construct a home on their lot. Their e fforts to sell the propert y ha ve been unsucce ssful bec ause potential buyers lost interest in the prope rty when they

discovered that they

wo uld be un able to obtain a building p ermit.

Mr. Shahan had not given up on t urni ng over the responsibility for Radio Beam La

ne and Deer Creek Lane to the county . In January 1998, he surreptitiously rec orded a deed dedicating the lanes to the county. Howeve r, the county discove

red the plot and again rejected the deed. In 1999, Mr. Shahan again asked the county to acc ept the roads ; howeve r, the county

again d eclined to consider accept ing the r oads until he improv ed them up

to county standar ds.

On November 16, 1999, Mr. Shahan filed suit against the Fra nklin Count y of

ficials i n the Chancery Court for

Franklin Co un ty. He argued that the county was now responsible for the maint enance of Radio Beam Lane and Deer Creek Lane on the alternative theories of implied dedication and promissory estoppel. He also requested a decla

rato ry judgmen t that the p

roperty owners along these roads were entitled to building pe rmits. On February

22, 2000, several persons who had purchased property from Mr. Shahan filed

suit in the Chan

cery Court for Franklin County agains tthe county and Mr. Shahan. The property owners sought a declaratory judgment regarding the responsi

bility fo r maintaining the roads, specific perfor mance against Mr. Shahan, and compensatory da

mages against both the county and Mr. Shahan.

The trial court consolidated the two cases in August 2000, and thereafter the county moved for a summary

judgment, and Mr. Shahan moved for a partial summary judg

ment. The trial court deniedMr. Shahan’s motion but partially g ranted the county ’s motion by dismissing (1) Mr. Shahan’s andthe property owners’ claims for monetary dama

ges, (2) the claims arising out of the denial of building permits, and (3) all claims against ind ividua l coun ty defenda nts. Follo wing a benchtrial in January 2002, the trial court filed an order on Februa ry 7, 2002, directing Mr. Shahan to improve Radio Beam Lane and Dee r Creek L ane up to i

ts 1990 roa

d standar ds and to su

bmit his subdivision to the Fr

anklin County

Planning Commission f

or appro val within

six months. The trial court also denied the property

owners’ claims for monetary damages against Mr. Shahan. Both Mr. Shahan and the property

owners have appealed.

II. M R . S HAHAN ’ S E QUITABLE E STOPPEL C LAIM
Mr. Shahan in sists that F

ranklin Co

unty is estopped

from applying

its subdivision regulations to his prope

rty and from declining to accept Radio Be am Lane and Deer Cr eek L ane as pu

blic roa ds. He argues that

Mr. Abbott, in his official capacity as a county r

oad commissioner, promisedhim that the county would take

over the responsibility for the roads once he acquired a 50-foot r ight-of-way andimproved them and that he had fully performed

his end of the ba

rgain. Mr. Shaha

n’s equit able-4-

estoppel claim

must fail f

or three reasons . First, M

r. Abbott l acked th

e author ity t o bind the c ounty to accept these roads as public roads. Second, the evidence does not support Mr. Shahan’s claim that Mr. Abbott promised to acce pt these roads as public roads. Third, Mr. Shahan never constructed the roads to e xisting county

standar ds.

A.

The doctrine of equitable estoppel is not favored in Tennessee, and parties seekingto invoke it have the burden of provi ng each and every element. Robinson v. Tenness ee Farme rs Mut. Ins. Co., 857 S.W.2d 559, 563 (Tenn. Ct. App. 1993). The doct rine pro tects, rather

than cre ates, rig

hts. Franklin v. St. Paul Fire & M

arine Ins. Co. , 534 S.W.2 d 661, 666 (T enn. Ct. Ap p. 1975); E.K. Hardison Seed Co. v. Continental Cas. Co. , 56 Tenn. App. 644, 652, 410 S.W.2d 729, 733 (1967). Equitable estoppel may be invoked in a ppropriate circumstances to prevent one par ty from taking unfair advantage of another par ty’s justifiable reliance

on hi s or her rep

resenta tions or c onduct. Bokor v. Holder, 722 S.W.2d 676, 680 (Tenn. Ct. App. 1986). Applying the doctrine of equitable estoppel to localgovernments is even less favored, and
so the doctrine is not applicable to governmental defe ndants to the same extent that it is applica

ble to private parties. Paduch v. City of Johnson City, 896 S.W.2d 76 7, 772 (Te nn. 1995) . In f

act, except for “ve

ry exception al circu

mstance s,” the do ctrine does not ap ply to gove rnment a cti ons
. Bledsoe County v. McReyn olds, 703 S.W.2d 123, 124 (Tenn. 1985). As the Te nnessee Supreme Courthas explained, “in th ose Tennessee cases where e stoppel was applied, or could have been applied, the public body

took aff irmative action th at clea

rly induced a

private party to act to his or her detrimen t, as distingu ished from silence, non-action or acquiescenc e.” Bledsoe County v. McReyn olds, 703 S.W.2d at 125. This court has held that equitable estoppelmay be invoked a gainst governmental ag encies only wh en th e a ge nc y in du ce d t he pa rt y t o giv e up property or a right in exchange for a pr omise. Thompson v. Department of Codes Admin, 20 S.W.3d 654, 664 (Tenn. Ct. App. 1999); Elizabethton Hous. and Dev. Agency, Inc. v. Price, 84 4 S .W .2 d 6 14 , 6 18 (T en n. Ct . A pp . 1 99 2) . A cc or di ng ly,
a party may invoke eq

uitable e stoppel a

gainst a gover nmenta l agency on

ly w hen the f acts cle arly establish the existence of an implied contract or that the gov ernment

has induc ed a par

ty to relinquis h
a cause of action. Thompson v. Department of Codes Admin, 20 S.W.3d at 664; Elizabeth ton Hous. & De v. Agency, Inc. v. Price, 844 S.W.2d at 618.

B.
The essence of Mr. Shahan’s equitabl e estoppel c laim is tha t Mr. Abbo tt induce d him to spend money to improve Radio Be am Lane and Dee r Creek Lane

by promising him that

the count y would take over the responsibility for ma intaining the road s once the y w ere con structed . He insist s that he could reasonably

rely on Mr. Abbott’s promise because Mr. Abbott was the Fra nklin County roadcommissioner in charge of the roads in that part of the county . Because the trial court made few findi ngs of fact regarding Mr. Shahan’s equitable estoppel claim, we have revie wedthe record de novo and h ave dete

rmined tha

t the evid ence do es not supp ort Mr. Sha han’s cl aim.2 At t he t ime of the conver sat ion be twee n Messrs . Abbot t an d Shahan in 1990, Tenn. Code Ann. § 13-3- 40 6 (1999) pro vided that “no coun ty or co urt or b oard or office r thereo f or any o ther pu blic o fficer or a uthor ity shall acc ept, lay out, open, improve, grade, pave or li ght any road . . . unl ess su ch road has been a ccepted or ope ned or h as otherwise receiv ed the l egal s tatu s of a publ ic road .

. .. ”

3 In 1990, these regulations requi red: (1) a fi ft y- foot cle ared r igh t- of- way; (2) pr oper gr ading and dra inag e; ( 3)
a thi rty -f oot mini mum gra ded road t op; (4) a mini mum of si x inche s of compact ed crushed s tone ext ending f rom shoulder to shoul der f

or th irt y f eet; (5) a min imum of

two in ches of asphalt

extendi ng at l east t

wenty -two f

eet wi de with shoulder stone; (6) properl y ins tall ed cross dra ins an d drainage til es; ( 7) properly inst alle d road signs; (8) paint ed refl ecti ve cente r and side l ines a

minimum of

four i nches wide; a nd (9) wri tten verif icat ion fr om the devel oper that all of th e requir ed road regula tions ha ve be en me t. -5- Despite th e f ac t t ha t M r. Ab bo tt ma y ha ve be en a c ou nt y road co mmissioner in the ea rly 1990s, he did not have authority to bind the county to accept private roads as public ro ads. 2 Parties who deal with

gover nmental o fficial s are pr

esumed to

know the li mi ts of

th e o ff ic ia l’ s a ut ho ri ty. J.A. Kre is & Co. v. City of Kn oxville , 145 Tenn . 297, 305, 237 S.W. 55, 5 7 (1921); Stones River Utils. v. Metro. Gov’t , 981 S.W.2d 175, 178 (Tenn. Ct. App. 1998). Accordingly , when Mr. Shahan hadhis conversation about the roads with Mr. Abbott in 1990, heknew or should have known that Mr

. Abb ott could not unilaterally bind the county to accept the roads and, therefore , that any commitment Mr. Abbott might have made regarding the roads was legally

unenforceable.

In addition

to our conclusion that Mr. Abbott lacked authority to bind the c ounty, we have also determined that the reco rd doe s not bear out Mr. Sha

han’s cl aim that Mr . Abbott a ctually promised that the c ounty

would accept these roads if they

were improved. Mr. Abbott’s recollection of his conversation with Mr. Sha han diff ers sig nifican

tly f rom Mr. Sha

han’s. Mr. Abbott recalls that he told Mr. Shahan that the county w ould “try to help him build a road through there.” We do not
co nstrue this comment to be an unequivocal promise to accept the roads or some implie d authorization to con struc t road s that did n ot mee t the e xis ting coun ty requireme nts for new road construction. Mr. Shahan was far from a neophy te in 1990 when he had his conversation with Mr. Abbott and should

have kno wn the dif

ferenc e betwe en encourage ment and a

binding c ommitment.

Fi na ll y, the evidence establishes beyond question thatMr. Shaha n’s improv ements to R adio Beam Lane and Dee

r Creek Lane did not meet the county’s e xisting requirements for new road construction. 3 It is e sse ntiall y undisputed that these roads ( 1) were not wide enough, (2) lac ked sufficient gravel, (3) wer

e not pav ed with asphalt, and (4) lacked adequate dr ainage tiles. Mr. Shahan, as an experience d developer, knew or should have known the requirements for new r oad construction, and, ther

efore, it was not r

easo nable for him to ente rtain the notion tha

t the coun

ty would accept or could be required to acc ept newly constructed roads that didnot meet the county’s minimum standards.

Mr. Shahan cannot use a casual conversation with a county road c ommissioner to circumvent the county standards f

or new road constructionor to for ce the c ounty

taxpay ers to be ar the e

xpense of properl y c onstruct

ing and then main

taining his roads

. The record

demonstrates that Mr. Shahan has not provedthe existence of the sort of exceptional circumstances that would warrant invoking the doctrine of equitable estoppel against Franklin County

. Accordingly , we affirm the trial court’s conclusi on that Mr . Shahan f ailed to su

bstantiat e his equitable es toppel cl aim.-6- III. M R . S HAHAN ’ S I MPLIE D D EDICAT ION C LAIM
Mr. Shahan also argues that there has bee n an implied dedication of Radio Beam Lane and Deer Creek Lane

as public roads because the public has been using these roads sincehe improved them. While it

is undoubtedly true that the public has used the roads, we have determined that the doctrine of implied

dedicat ion does not apply

because theroads are in an unapproved subdivision. The doctrine

of implied

dedicat ion cannot be used t

o circum vent du ly enacte d subdivision regula tions.

A. A dedication of real property for public use requires an offer of the property for

public use by its owner and the public’s acceptance of the property owne

r’s offer. Stoker v. Brown, 583 S.W.2d 765, 766 (Ten

n. 1979); Winnv. Tucker Corp., 848 S.W.2d 64, 68 (Tenn. Ct. App. 1992). Both the offer and the acceptance need not be express. They may be implied. State ex rel. Matthews v. Me tropolitan Gov’t , 679 S.W.2d 946, 948 (Tenn. 1984); West Meade Home owners Ass’n, Inc. v. WPMC, Inc., 788 S.W.2d 365, 366 (Tenn. Ct. App. 1989).

Parties seeking to prove an implied dedication must present clear and convincing evidence that the property owner intended to perman entl y part with the re al property a nd to vest it in the public. Jackson v. Byrn, 216 Tenn. 537, 543, 393 S.W.2d 13 7, 140 (19 65); McKinney v. Duncan, 121 Tenn. 265, 271, 118 S.W. 683, 684 (1909). This evidence may be circumstantial. Cole v. Dych, 535 S.W.2d 315, 319 (Ten n. 1976); Roger s v. Sain, 679 S.W.2d 450, 453 (Tenn. Ct. App. 1984). They must also prove that the property has bee n accepted f

or public use. The government’s acceptance

of the propert

y lik ewise need not be e

xpress. It too may

be implied. Nashville & D.R.R.
v. State , 60 Tenn. 55, 57-58 (18 73); Hacket t v. Smith County , 807 S.W.2d 695, 699 (Tenn. Ct. App. 1990); Cartwright v. Bell , 57 Tenn. App. 352, 368-369, 418 S.W.2d 463, 470-471 (1967).

An implication of pu b lic acceptance arises from “a general and long-c ontinued use by the public as of right.” Doyle v. City of Chattanooga , 128 Tenn. 433, 438, 161 S.W. 997, 998 (1913). While the common-law does not require a particular duration of public use, “it oug htto be for such
a l en gth of time that the public accommodation and private rights mig ht be materially af

fected by
an interruption of

the enjoyment.” Scott v. State, 33 Tenn. ( 1 Sneed) 629, 633 ( 1854); see also To wn of Benton v. Peoples Ban k of Polk County, 904 S.W.2d 598, 602 (Tenn. Ct. App. 1995). The Tenness ee Supre

me Court ha s explaine d that
[n]o particular period is contro l ling. Use for twenty years mig

ht be in sufficientto establish dedication in one case and y et it might be establishedin another in one ye ar. Dedication is not dependent upon the du ration of use. Use for a long period of time is, howe ver, a circumstance tending to show the fact of dedication. Cole v. Dych , 535 S.W.2d at 320.4 Tenn. Cod e Ann. § 13-4-301(4) (19 99).

5 Roads whi ch hav e notrecei ved t he l egal st atus of a pu bli c road.

6 Of course, approval of

a plat by the regional

planni ng commissi on “shal l not be deemed to const itu te or ef fect
an acce ptanc e by an y coun ty or by the pub lic of the dedication of any road or other ground shown upon the plat.” Tenn. Code Ann. § 13-3-405 (1999). The Tenness ee Supreme Court h as explai ned that “the excepti on carved out of th e act providing that plat a ppr ova l is not acc eptan ce of ro ads the rein cle arly sho ws the leg islative inten t of req uiring sp ecific and separate ac ceptance of roads, over and a bov e the step s requ ired to get pla t app rova l.” Foley v . Hamil ton , 659 S.W.2d at 360. Such acceptance would d epend upon w hether the road at i ssue com plied with the county’ s regulati ons regarding new road s. -7- However, the doctrine of implied dedication should not, as a general matter, a pply to roads that are par t of a subd

ivision as d

efined in Tenn. Code Ann. § 13-3-401(4) (1999). The regional planning statutes, like their muni cipal counterpa rts, 4 exist to promote the health, safety , and welfare of the local residen

ts and property

owners by pre scribing uniform rules for the orderly development of re al pr op er ty. Tenn. Cod e Ann. § 13 -3-302 ( 1999). Th ey protect the public

by gua ranteeing that adequa te streets will be provided when property is subdivided. Foley v. Hamilton , 659 S.W.2d 356, 360 (Tenn. 1983). Accordingly , persons desiring to develop their property should not be permitted to use the doctrine of implied

dedicat ion to circ

umvent the se statute s and reg ulations.

The reg ional planning statutes themselves cannot easily accommodate the impl ied dedicat io n doctrine. Subdivisions must be approved by the regional planningcommission. Tenn. Code Ann. § 13-3-402 (1999). Once the “platting jurisdiction” of a regionalplanning commission has attached,

no cou nty

or court or board or offic er ther

eof or a ny other publ

ic officer or author ity shall ac cept, la

y ou t, open, improve, grade, pave
or light any roa

d . . . unless such road has been accepted or opened or has o the rwise received the legal status of a public road prior to the attachment

of the planning commission’s jurisdiction, or unless such roadcorresponds in its location and lines with a road shown on a subdivision plat approved by the planning commission.

Tenn. Code Ann. § 13-3-406 (1999). Accordingly , a county may not accept new or improved roads 5 in a subdivision without first a pproving the subdiv

ision plat a

nd then ac cepting

the road s. 6

The doctrine of implied acceptance has only limited application to pro perty within subdivisions governed by local planning statutes. It may be invoked when a local government has declinedor refu sed to expli cit ly acce pt property af

ter a developer of an approved subdivision has complied with all applicable regulations. According ly, we have employed the doctrine

in a cas e where the developer had complied with all applicable reg ulat ions and had not only obtained the planning commission’s approval of the subdivision plat but also had obtained a certification by the county road co mm ission that the roads in the subdivision complied with county standards. Even thou gh the local government had not expressly accepted the roads, we held that an implied acceptance

had o ccurred becau se the re sidents in t he subdivi sion and th

e public, including

mail carrie rs, school buses, and law enforcement vehicles had used the road. Hackett v. Smith Count y , 807 S.W.2d at 699.7 W e note tha t Mr. Shahan violated Tenn. Code Ann. § 13-3-410(a) (199 9) by selli ng tracts of land in h i s dev elop men t befor e ob taining p lanning com mission app rova l.
-8- B.

To determine whether Mr. Shahan may take advantage of the doctrine of implied dedication,
we must first determine whether his development of the property along Radio Beam L ane and Deer Creek Lane is a subdivision. Mr. Shahan in sists that h is develo pment is no t a

subdivisio n becau se the lots in the s u bdivision ex ceed fi ve acre s. While we have no d

oubt that M

r. Shaha n set out to avoid the regional planning commission, we find that he has not succ eeded.

Tenn. Code Ann. § 13-3-401(4)( B) define s a “subdivision” as “the division of a tract or parcel of land into two (2) or more lo ts, sites, o r other d ivisions requiring

new streets or util

ity construction, or any

division of

less than five (5) acres for the purpose, w hether immediate or future, of sale or building d

evelopme nt.” This d

efinit ion plain ly in

cludes a developm

ent conta ining lot s larger than five acres i f the dev elopment

required new stre

ets or ut il it y co ns tr uc ti on . A cc or di ng ly,
we determined that a project requiring the de veloper (1) to make ma

jor improv ements in

an existing roadrunni ng t hrough

the prope

rty , (2) to a

rrang e for pr

oviding p ower to v arious lo ts, and (3 ) to install a new water

line was a subdivision . Loftin v. Langsdon , 813 S.W.2d 4 75, 479-8 0 (Tenn. Ct. App. 1991).

Mr. Shahan ma

de $37,00 0 in improvements to Radio Beam Lane and Dee r Creek L ane solely for the purpo se of mak

ing his pr operty attract ive to potential purchasers. Like the de veloper in Loftin
v. Langsdon , he improved the existing roads by bulldozing brush and

trees, grading, and installing drainage. He also p

repared a plat to

enable t he local electri c utility

to install power li nes for the developm ent. Like the developer in Loftin v. Langsdon , Mr. Shahan did notbegin se lling the tracts in his devel opment unt

il he had c ompleted

the improv ements to

the road. There is little doubt that the improveme

nts to Radio Beam Lane a nd Deer Creek L ane were required by

“the imperatives of the marketplace.” Loftin v. Langsdon , 813 S.W.2d at 480. Accordingly, w e c onclude that Mr. Shahan’s development is a subdivision because it required new stree t and utility construction. 7

C.

Becau se Mr. Shaha

n’s deve lopment is a

“subdivision” as defined in Tenn. Code Ann. § 13-3- 401(4)(B), he was r

equired not only to obtain approval of his pla

t, but he w as also r

equired to obtain approval of his improvements to the roads in his subdivi sion befo re the c ounty

could be r

equired to a ccept the road s and assu

me respo nsibility

for their maintena

nce. Mr. Shahan di d neit her. I n addition, his improvemen ts to R adio Beam Lane and Deer Creek Lane did not comply with the applica ble county

requir eme nts for ne

w roads. These fa

cts disting

uish this ca se from Hackett v. SmithCounty in which the develope r had com plied with all applic able re quireme

nts for ne w roads. Mr. Shahan’s wholesale disregard for the subdivision regulations and road requirements disentitles him to claim the benefit of the doctrine of implied dedication. Accord ingly , the tria

l court pr operly declinedto find that there had been an implied acceptanc e of Radio Beam La ne and Deer Creek Lane.8 Based on th is recor d, the Franklin County Highway Comm ission now requires new r oads to comply with the

199 5 Frank lin County new ro ad standa rds.
-9- IV. T HE S TAND ARDS A PPL ICABL E TO R ADIO B EA M L ANE AND D EER C REEK L ANE
Becau se Mr. Shaha

n has fai led to pas s along t he oblig ation to ma

in tain RadioBeam Lane andDeek Creek La

ne to Franklin County, he has the c ontinuing obligationto maintain these r oads. The evidence convincingly demonstrates he has shirked his responsibility. Several property owners testified that the roads were barely passable because of deep potholes and that they had become “an obstacle course.” When it rained, poor drainag e cause d water t

o cover t he roadw ay

in certa in area s. Accord ingly , the tria

l court pr operly ordere d Mr. Shah an to main tain these roads.
However, we have determined that the trial cou rt erre d by only requiring Mr. Sha

han to bring these roads up to the standards as they existed in 1990. This decision effectively re wards Mr. Shahan for ignoring the sub division regulatio ns that we re clea rly applica ble to his pr op er ty. These roads are locatedin a subdivision that h as y et to be a pproved by t he regional pla

nnin g com mission. Mr. Shahan has never requested the planning commission

to approve his subdivision, and the planning commission will not be

required to approve

his subdivisio n until he s ubmits a pla t that mee ts all applicable requirements. Likewise, the commission will not berequired to accept the roads in the subdivisio n until they

meet app licable r

equirem ents.

In light of the fa ct that Mr . Shahan never sou ght app ropriate public accept

ance of these ro ads, he must take the appropriate steps required by law before Franklin County can be required

to accept them. It is his obligation to bring these roads up to present standards, not the standardsexisting in 1990. Accordingly , we modify the judgment to require Mr. Shahan to repair or improve Radio Be am Lane and Dee r Creek L ane so tha t they meet the c ounty ’s curr

ent road standar ds. 8

V. T HE P ROPERT Y O WNERS ’ R EQUES TS F OR D AMAG ES
Two of the property

owners living along Radio Beam Lane and Dee

r Creek Lane insist that they are entitled to collect

monetary dama

ges from Mr. Shahan in addition to specific performance. They assert that they ha

ve lost the

beneficial use of

the money

they used to pur

chase th e proper ty and, theref

ore, tha t they are ent itled to int

erest on the money

betwee n the time they purcha sed the propert y and the time that Mr. Shahan obtains approval of the subdivision and the roads. We have determined that the trial c ourt prop erly denied th ese dama ge cla ims.

A.

A breach of contract trigg ers bothlegal and equitable remedies. The pr eferred remedy

is the leg al reme dy – monetary damages. Shuptrine v. Quinn , 597 S.W.2d 728, 730 (Tenn. 1979); Robinson v. Kenney , 526 S.W.2d 115 , 119 (Tenn. Ct. App. 1973). The purpose of monetary damages is to compensate a party to a contr

act for the loss or injury sustained by the other party ’s breach. Beat

y v. McGraw , 15 S.W.3d 819, 829 (Tenn. Ct. App. 1998). However, there are-10-

occasions when monetary damages are insufficient to protect a contr acting party ’s expectation interest s. In tho se circumstance s, the equitable remedy of specific performance is warr anted. GRW Enters., Inc. v. D

avis , 797 S.W.2d 606, 614 (Tenn. Ct. App. 1990); Res tatement (Second) of Contracts § 359(1) (1981). Specific performance is properwhenever there is any reasonable doubt regarding the adequacy of monetary da

mages. 12 A RTHUR L INTON C ORB IN , C ORBI N ON C ONT RACTS § 1139, at 188 (Int e rim ed. 2002) (“C ORBI N ON C ONTRAC TS ”). While granting specific perf ormance i s di sc re ti on ar y, North v. Ro binette , 527 S.W.2d 95, 98 (Tenn . 1975); Hillard v. Franklin , 41 S.W.3d 106, 111 (Tenn. Ct. App. 2000), the courts frequent ly g rant spe cific pe

rforman ce with r egard to contracts for the s aleof real property

. Radiophone Broadcasting Station v. Imboden , 183 Tenn. 215, 219, 191 S.W.2d 53 5, 537 (19 46); McGaugh v . Gal breath , 996 S.W.2d 186, 191 (Tenn. Ct. App. 1998).

In proper circumstances, a trial court may award both specific performance and damages when specific performance will not make the injured pa rty whole. Bush v. Cathey , 598 S.W.2d 777, 783 (Tenn. Ct. App. 1979). As Professor Corbin has explained:

A decreefor

specific performance seldom bring s about performance with i n the time that the contract requires. I n this respect, such a decreeis nearly

alway s a decr

ee for l e ss than exact and complete performance. For the partialbreach involved in the delay or in other existing non-performance, money damages w ill be awarded along with the decree for specific per formance.

12 C ORBI N ON C ONT RACTS § 1160, at 254-5 5. Thus, for example, a court may properly decree specific per formance of a cont

ract to c onvey

real pr operty and also a

ward da mages f or delay in occupancy
. 330 Michi

gan Ave. , Inc. v. Cambridge Hotel, Inc. , 183 So. 2d 7 25, 728 (F la. Ct. App. 1966); Cohn v. Mezzacappa Bros., Inc. , 547 N.Y.S.2d 367, 369 (App. Div. 1989).

B.

The trial court

determined that the proper ty o wners we

re entitl ed to specific performance of Mr. Shahan’s agreement to provide adequate roads for ingress and eg re ss to th ei r p ro pe rt y. While the propert

y owners do not take is sue with the trial court’sdecision

to gran t them specific performance, they assert

that spe cifi c per

form ance alon e is in suff

icient to m ake t

hem whole . We have determined that their evidence of damag es is far too speculative to warrant an aw ard of damages in addition to specific performanc e. As the pa rties see king da mages, the property owners must prove that specific performance alone is not an adequate remedy . They must also prove the na ture and a mount of their dama ges, Hogan v. Coyne Int’l Enters. Corp. , 996 S.W.2d 1 95, 206 (Tenn. Ct. App. 1998). While their proof need not b e mathema

tically precise , it should b e reaso nably certain enough to enable a reaso nable trier-of-fact

to make a fair and reasonable asse ssment of the damages. Baker v. Hooper , 50 S.W.3d 463, 470 (Ten

n. Ct. App. 2001); Tire Shredders, Inc. v. ERM-North Central, Inc. , 15 S.W.3d 849,9 Th eir lawyer inc luded pro perty tax es in his dama ge calculations. For the Pecki npaughs, the at torney calcul ated the t otal amount

of los t in teres t fr om October 1994 to Ja nuar y 2002 t o be $10,540 pl us $4, 444 in r eal est ate taxe s, for a total o f $14 ,984 in damages . For the Grahams , he cal cula ted $7, 906 in l ost int eres t, $1,200 for co nstructing a well, plus $57 2 in real estate taxes, for a total of $9 ,678 in d amage s. -11- 857 (Tenn. Ct . App. 199 9); Wachtel v. W estern Sizzlin Corp. , 986 S.W.2 d 2, 6 (Tenn. Ct. App. 1998).

The Peckinpa

ughs and the Grahams assert that they are entitled to monetary

damages becau s e they lost the beneficial use of their property due to the substandard roads and Mr. Shahan’s failure to obtain planning commission approval for the subdivi sion. T hey equa te their damages with the interest they would have

earned on the mone

y they used topurchase their property had they invested the funds at

eight percent as well as the expenses they incurred af te r p ur ch as in g t he pr op er ty. 9 We find these calculations unrelated to the actual losses, if any , that the parties actually incurred because of Mr. Sha

han’s co nduct.

The Grahams purc hased their 9.25-acre tract bec ause they wa nted access to the back of
a nother piece of propert y they owned. A

fter the y decided to build a hous e on the pr operty , th e y discovered

that they would be unable to o btain a building permit because the subdivision was unimproved. They attempted to sell the prope rty in 1999, but potential buy ers lost interest after they discovered

that they would be unable to obtain a building permit. They introduced no evidence regarding the diminished

value of the property , how much their offering price wa s, the number of potential buy ers of the proper ty, or whether they

receiv ed counte

r-offe rs for the propert y a nd, if so, the amount of these counter-offers. More importantly , they presented no evidence

that the amount they will be able to sell the property for after Mr. Shahan improves the roads and obtains approval of the sub division wi ll not ade quately compensa

te them.

The Peckinpaughs purchased three tra cts from Mr. Shahan. T

hey obtained a building

permit to construct their home on the middle lot but ha d not app lied for building permits for their two remaining lots. In addition, the Peckinpaughs had not attempted to sell any of their property , even thou gh they planned

at some point to sell the two undeveloped lots to fund their retirement. In lig ht of this proof, the Peckinpaughs have failed to prove that they hav e actually been harmed by Mr. Shahan’s failure to construct adequate roads or to obtain approval of his subdivision.

VI.

We affirm t

he judg ment as mod

ified he rein and remand t he case to the tria

l court with directions to enter an order amending its final decr ee to require Mr. Shahan to bring Radio Beam Lane and Dee r Creek L ane up to F

ranklin Co

unty ’s curren t standards for new roads. We tax the costs of this appeal to Earl M. Shahan for which execution, if necessary , may issue.

_____________________________ WI LL IA M C. K OCH , JR. , J.