IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

February 28, 2017 Session

GARY L. KEY v. O.C. RENNER JR. ET AL.

Appeal from the Chancery Court for Greene County

No. 20080032 Douglas T. Jenkins, Chancellor

___________________________________

No. E2016-01049-COA-R3-CV

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Neighboring property owners disagree over the terms of an oral agreement for 

construction of a private road across their properties. After the road was completed, one 

property owner failed to pay his part of the construction costs or grant a permanent 

easement permitting use of the road. The other property owner filed a complaint for 

specific performance or, in the alternative, damages for breach of contract. The 

defendant admitted the parties had an agreement but disputed the terms and raised the 

defense of the statute of frauds. After a trial, the court ruled that the defendant was 

equitably estopped from asserting the statute of frauds and awarded specific performance. 

On appeal, the defendant argues that the plaintiff is not entitled to enforce the agreement 

because either the statute of frauds bars enforcement of the agreement or the plaintiff was 

the first party to breach. After a thorough review of the record, we affirm the judgment 

as modified.

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

Modified

W. NEAL MCBRAYER, J., delivered the opinion of the court, in which D. MICHAEL 

SWINEY, C.J., and JOHN W. MCCLARTY, J., joined.

Mark A. Cowan, Morristown, Tennessee, for the appellants, O.C. Renner Jr., and the 

Omer C. Renner Jr. M.D. Living Trust.

William S. Nunnally, Greeneville, Tennessee, for the appellee, Gary L Key.

11/30/2017
2

OPINION

I.

A.

The tracts of land relevant to this case lie within a bend of the Nolichucky River 

on the border edge of Greene County, Tennessee, and were originally part of a 200-acre 

farm owned by W.C. Scruggs. Over time, portions of the Scruggs farm were sold to 

various individuals, including the parties to this case, Gary Key and Dr. O.C. Renner. In 

2005, Dr. Renner transferred all of his real property to the Omer C. Renner Jr. M.D. 

Living Trust (the “Renner Trust”).1

The properties in this area are, for the most part, undeveloped. The nearest county 

road is Fish Hatchery Road. The Scruggs family owns property on both sides of the 

county road. Gwendolyn Renner, Dr. Renner’s sister-in-law, owns property that lies

south of Fish Hatchery Road. The Renner Trust owns two nonadjacent tracts: one tract 

south of Gwendolyn Renner’s property and a second one south of Mr. Key’s property. 

Mr. Key’s property is bordered on two sides by the Renner Trust properties and on two 

sides by the Nolichucky River.2 Although neither the Key property nor the Renner Trust 

properties have direct access to the county road, both men can reach their properties 

using an old private road on the Scruggs property by virtue of express easements not at 

issue here. 

In 2005, Mr. Key began to explore his options for obtaining electricity to build a 

house on his land. He initially requested permission to attach onto the existing power 

line on property across the river, but the property owner refused. He was also refused 

permission to install power lines along his existing easement through the Scruggs 

property. 

Eventually, Mr. Key approached his neighbor, Dr. Renner, and proposed that the 

two men build a new private road, “split” the cost, and grant each other a “right of way.” 

Mr. Key offered to arrange for the road construction and donate the necessary labor to 

remove trees and brush along the proposed route. He also wanted to install a power line

along the new road and offered Dr. Renner access to the power line for the Renner Trust

properties. Dr. Renner accepted the proposal. But their oral agreement was never 

memorialized in writing. 

 

1 Dr. Renner is the trustee of the Renner Trust with authority to act on its behalf. 

2

See attached Appendix for a layout of the properties in question.
3

Dr. Renner mistakenly believed that, in addition to the properties previously 

described, he also owned a thirty-foot strip of land running along the edge of his sister-inlaw’s property. If this had been the case, he would own land connecting the upper 

Renner Trust property to Fish Hatchery Road. Because he thought the private road he 

planned to construct with Mr. Key might require more land, Dr. Renner attempted to 

purchase an adjacent section of his sister-in-law’s property before construction began, but 

Mrs. Renner refused. Mr. Key also approached Mrs. Renner about purchasing the land, 

but when she did not respond, he did not pursue it further. The men proceeded with their 

plans and tried to stay within the area that they believed Dr. Renner already owned

alongside of his sister-in-law’s property.

3

 During the course of this litigation, however, 

Dr. Renner discovered that he did not own the thirty-foot strip but instead had an 

easement through Mrs. Renner’s property. 

Mrs. Renner testified that, although she was aware that a road was being built on 

her property without her permission, she chose not to become involved. She never 

complained about the road or the power line and, at trial, voiced no objection to their 

continued use. 

In the spring of 2006, Mr. Key hired Four Seasons Ground Service (“Four 

Seasons”) to construct the new road. The original plan envisioned a simple twelve-footwide access road beginning at Fish Hatchery Road, proceeding along Mrs. Renner’s 

property line, and continuing down through the upper Renner Trust property and the Key 

property to the lower Renner Trust property. The estimated cost was approximately 

$5000. 

After Four Seasons began grading the new road, Dr. Renner suggested a location 

change for a portion of the road on the upper Renner Trust property to avoid a steep hill 

and an abrupt u-turn, and Mr. Key agreed. Dr. Renner also requested several more 

changes to improve future access to the lower Renner Trust property.

4

 Again, Mr. Key 

did not object. So, the width of the proposed road was doubled to allow for two-way 

traffic. Also the construction quality was improved, and drainage tiles were added. 

Unsurprisingly, these changes increased the cost of the new road, and Mr. Key ultimately 

paid Four Seasons over $18,000. 

Between March and June 2006, Four Seasons completed the basic grading and 

drainage for the new road. Subsequently, Mr. Key and Dr. Renner purchased and spread 

rock on the road bed and, in an effort to prevent erosion, sewed grass seed on either side. 

Dr. Renner also worked to improve water drainage issues on his property caused by the 

new road. 

 

3

Proof at trial revealed that while the road was within the thirty-foot strip, the power line was not. 

4 Dr. Renner planned a Christian campground on the lower property. 
4

Once the road was graded, Mr. Key arranged with Greeneville Light and Power 

System to install a power line beside the new road. Mr. Key removed more trees and 

overhanging branches, as required by the power company, and paid for the installation. 

The power line was above ground until it reached Mr. Key’s property. To extend the line 

to the lower Renner Trust property, Dr. Renner was required to pay the power company’s 

fee and dig a trench for the line extension. The men intended to connect the road to the 

lower Renner Trust property after these items were completed. 

Unfortunately, the relationship between Dr. Renner and Mr. Key deteriorated

during the construction of the private road. And Dr. Renner became increasingly 

dissatisfied with the amount and quality of work performed by Mr. Key’s men.5 The two 

men also had a number of unrelated disputes that further soured their relationship, 

resulting in several alleged incidents of vandalism. 

According to Mr. Key, when he asked Dr. Renner to pay half of the road 

construction costs and to execute a formal written easement, he refused. For his part, 

Dr. Renner maintained that he simply disagreed with Mr. Key’s interpretation of the 

contract. Dr. Renner testified that he only agreed to pay twenty percent of the road 

construction costs and grant a personal license to use the road, not a permanent easement. 

But he acknowledged that, as of the time of trial, he had not paid any part of the Four 

Seasons invoice or granted Mr. Key an express easement. 

Because Dr. Renner refused to perform, Mr. Key “stopped doing anything.” 

When Dr. Renner subsequently attempted to extend the power line from the Key property 

to the lower Renner Trust property, Mr. Key ordered him to stop. In response, 

Dr. Renner placed barricades over the road at the boundaries of the upper Renner Trust 

property. Since March 2007, no one has used the new road. 

B.

On January 22, 2008, Mr. Key filed a complaint in the Chancery Court for Greene 

County, Tennessee against Dr. Renner and the Renner Trust. Mr. Key alleged that 

Dr. Renner and the Renner Trust breached the oral agreement, committed trespass, and 

were unjustly enriched. Mr. Key sought specific performance or, in the alternative, 

damages for breach of contract, damages for trespass, and attorney’s fees. The 

defendants admitted that there was an agreement but disputed the terms. The defendants 

also filed a counterclaim seeking compensation from Mr. Key for property damage and 

trespass. 

 

5 Dr. Renner complained that Mr. Key did not perform the majority of the labor necessary to clear 

the path for the new road as agreed. While he conceded that Mr. Key’s men cut down trees and removed 

stumps, he explained that his own men removed and milled the felled trees and cleared the brush. 
5

After a bench trial, the court ruled that the parties had a valid, enforceable oral 

agreement. The court found that they had orally agreed to construct a road, divide the

construction costs eighty percent to Mr. Key and twenty percent to Dr. Renner, and grant 

each other reciprocal easements for use of the road. The court also determined that the 

agreement included a provision allowing Dr. Renner to attach the lower Renner property 

to the power line at his own expense.

The court decreed that specific performance was the appropriate remedy. Thus,

Mr. Key received a monetary judgment for $6,297.62, representing Dr. Renner’s share of 

the construction cost. The court also awarded Mr. Key and Dr. Renner permanent 

easements to use the new road, including that portion of the road on Mrs. Renner’s 

property. The court also ruled that Dr. Renner was entitled to attach the lower Renner 

Trust property to the power line and to extend the road across Mr. Key’s property, albeit 

at his own expense.

Although the court enjoined both parties from “blocking the other from the full 

and unimpeded use” of the road, the court allowed the two men to construct a gate at the 

entrance to the new road and divide the costs equally. The court’s order also included a 

provision requiring Mr. Key and Dr. Renner to maintain the new road “at their joint and 

equal cost” and to share with Mrs. Renner the cost of maintaining the portion of the road 

on her property. The court declined to award additional damages or attorney’s fees to 

either party.

The defendants filed a motion to alter or amend the court’s order. The court 

denied the defendants’ motion, and in so ruling, specifically found that Dr. Renner was 

equitably estopped from relying on the defense of the statute of frauds. 

II.

On appeal, the defendants contend that the trial court erred in enforcing the oral 

agreement because it violated the statute of frauds. Alternatively, they argue that the trial 

court erred in ruling in Mr. Key’s favor because he was the first to materially breach the 

agreement. Finally, they challenge the court’s authority to grant a permanent easement 

over Mrs. Renner’s property.

6

In a non-jury case, our review of the trial court’s factual findings is de novo upon 

the record, accompanied by a presumption of the correctness of the findings, unless the 

 

6 The defendants also raise on appeal whether the trial court erred in refusing to compel the court 

reporter to produce audio tapes used to create the trial transcript. The record reveals that the audio tapes 

were erased in the normal course of business after being transcribed. We conclude the trial court did not 

err in denying the defendants’ motion to compel.
6

preponderance of the evidence is otherwise. Tenn. R. App. P. 13(d). Evidence 

preponderates against a finding of fact if the evidence “support[s] another finding of fact 

with greater convincing effect.” Rawlings v. John Hancock Mut. Life Ins. Co., 78 S.W.3d 

291, 296 (Tenn. Ct. App. 2001). We review a trial court’s conclusions of law de novo, 

with no presumption of correctness. Kaplan v. Bugalla, 188 S.W.3d 632, 635 (Tenn. 

2006).

A. STATUTE OF FRAUDS

The defendants admit that Dr. Renner and Mr. Key had an agreement but assert 

that the statute of frauds precludes enforcement of an oral agreement to grant a permanent 

easement. See Tenn. Code Ann. § 29-2-101(a)(4) (2012). Real property is considered 

“one of the most valuable types of property,” and any action on a “contract for the sale of 

lands” is prohibited by the statute “unless the promise or agreement . . . [is] in writing, 

and signed by the party to be charged.” Id.; GRW Enters., Inc. v. Davis, 797 S.W.2d 606, 

611 (Tenn. Ct. App. 1990). It is well settled that this provision of the statute of frauds

includes express easements. See Nunnelly v. S. Iron Co., 29 S.W. 361, 365-66 (Tenn. 

1895); Cellco P’ship v. Shelby Cty., 172 S.W.3d 574, 593 (Tenn. Ct. App. 2005); Lee 

Highway & Assocs., L.P. v. Pryor Bacon Co., No. 03A01-9507-CV-00237, 1995 WL

619941, at *3 (Tenn. Ct. App. Oct. 19, 1995) (“It is clear, beyond any doubt, that the 

right to go over the land of another is a right that must be in writing to be enforceable.”).

The statute of frauds was enacted “to avoid perjury on the one hand and fraud on 

the other.” Baliles v. Cities Serv. Co., 578 S.W.2d 621, 623 (Tenn. 1979) (quoting Price 

v. Tenn. Prods. & Chem. Corp., 385 S.W.2d 301, 308 (Tenn. Ct. App. 1964)). But “strict 

application of the Statute of Frauds can lead to evils as undesirable as those it was 

designed to limit or prevent.” Smith v. Smith, M2004-00257-COA-R3-CV, 2005 WL 

3132370, at *6 (Tenn. Ct. App. Nov. 22, 2005). The statute was not intended to be used 

as a means to “refuse to perform what [a party] has agreed to do” or as “an instrument of 

hardship and oppression.” Baliles, 578 S.W.2d at 624; Cobble v. Langford, 230 S.W.2d 

194, 196 (Tenn. 1950); see also GRW Enters., Inc., 797 S.W.2d at 611. 

Thus, our courts have recognized exceptions to strict application of the statute. 

Trew v. Ogle, 767 S.W.2d 662, 664 (Tenn. Ct. App. 1988). For instance, oral agreements 

that violate the statute may be enforced if one party has partially performed. See Buice v. 

Scruggs Equip. Co., 250 S.W.2d 44, 48 (Tenn. 1952) (explaining that partial performance 

“is purely an equitable doctrine and is a judicial interpretation of the acts of the parties to 

prevent frauds”). The partial performance exception, however, does not apply to oral 

agreements affecting real property.7 Baliles, 578 S.W.2d at 624; Buice, 250 S.W.2d at 

 

7 Mr. Key asks this Court to adopt a new exception to the statute of frauds that would allow 

enforcement of an oral agreement involving real property when one party has fully performed. We 

decline to do so. “While in many jurisdictions an executed contract takes the case from under the statute 
7

47; Trew, 767 S.W.2d at 664.

Depending on the “totality of the factual situation,” our courts have also held that 

a contracting party may be equitably estopped from asserting the statute of frauds. Smith, 

2005 WL 3132370, at *7; see Disney v. Henry, 656 S.W.2d 859, 861 (Tenn. Ct. App. 

1983) (enforcing oral agreement to convey land based on equitable estoppel). In this 

context, equitable estoppel 

“arises from the ‘conduct’ of the party, using that word in its broadest 

meaning as including his spoken or written words, his positive acts, and his 

silence or negative omission to do any thing. Its foundation is justice and 

good conscience. Its object is to prevent the unconscientious and 

inequitable assertion or enforcement of claims or rights which might have 

existed, or been enforceable by other rules of law, unless prevented by an 

estoppel; and its practical effect is, from motives of equity and fair dealing, 

to create and vest opposing rights in the party who obtains the benefit of the 

estoppel.”

Baliles, 578 S.W.2d at 624 (quoting Evans v. Belmont Land Co., 21 S.W. 670, 673-74 

(Tenn. 1893)).

The party seeking application of equitable estoppel must show that the party to be 

estopped: (1) conducted himself in a manner which “amounts to a false representation or 

concealment of material facts,” or is “calculated to convey the impression that the facts 

are otherwise than, and inconsistent with, those which the party subsequently attempts to 

assert;” (2) intended or expected that the conduct would be acted upon; and (3) had actual 

or constructive knowledge of the true facts. Osborne v. Mountain Life Ins. Co., 130 

S.W.3d 769, 774 (Tenn. 2004). The party asserting estoppel must also prove a lack of 

knowledge of the true facts on their own part and a prejudicial change in position in 

reliance on the conduct of the party to be estopped. Id.

Here, the trial court found that equitable estoppel applied because: (1) both parties 

agreed to the material terms of the contract; (2) Dr. Renner requested and obtained 

several changes to the proposed road, resulting in a massive increase in cost; (3) Mr. Key, 

in reliance on Dr. Renner’s conduct, substantially performed his obligations; and (4) 

 

of frauds, that does not seem to be the rule in Tennessee where the statute is enforced according to its 

letter with reference to real estate.” Daugherty v. Toomey, 222 S.W.2d 197, 199 (Tenn. 1949); see also

Logan v. Estate of Cannon, No. E2015-02254-COA-R3-CV, 2016 WL 5344526, at *9 (Tenn. Ct. App. 

Sept. 23, 2016) (rejecting similar argument that full performance of a contract affecting real property 

should prevent application of the statute of frauds). And the proof in this record does not support 

Mr. Key’s claim that the contract was fully performed. It is undisputed that the power line and the road 

have not been extended to the lower Renner Trust property.
8

Dr. Renner was aware of Mr. Key’s performance and never objected. The evidence in 

the record does not preponderate against these findings, and under these facts, we agree 

that Dr. Renner should be equitably estopped from relying on the statute of frauds. See 

Thornton v. Marcum, No. E2007-01326-COA-R3-CV, 2008 WL 836368, at *3 (Tenn. Ct. 

App. Mar. 31, 2008) (concluding that because the defendant did not deny the existence of 

the agreement and never objected to the plaintiff’s performance there was a “compelling 

reason” to apply the doctrine of equitable estoppel); Luzadder v. Fowler, No. 01A01-

9706-CH-00239, 1998 WL 30244, at *3 (Tenn. Ct. App. Jan. 28, 1998) (applying 

equitable estoppel when both parties agreed to the essential terms of the oral agreement 

and the defendant did not object to the plaintiff’s performance).

Although Dr. Renner argues that he “did nothing wrong except refuse to follow 

through with an unenforceable agreement” after Mr. Key ordered him off of his property, 

we disagree. “Silence, failure to act, or acquiescence may be sufficient to invoke 

equitable estoppel where, in context, they reasonably mislead another.” Smith, 2005 WL 

3132370, at *8. Actual intent to deceive is not required. Church of Christ v. McDonald, 

171 S.W.2d 817, 821-22 (Tenn. 1943). Dr. Renner never denied that the parties had an 

agreement and, at all times, acted as if he intended to fulfill his obligations. He even 

requested and obtained several modifications to the original agreement which impacted 

the scope of Mr. Key’s performance. As the trial court pointed out, if Dr. Renner had 

doubts about the enforceability of the oral agreement, he had ample opportunity to voice 

his concerns before Mr. Key had expended considerable time, effort, and money fulfilling 

his part of the agreement.

Dr. Renner further argues that this Court should refuse to apply equitable estoppel 

because of Mr. Key’s conduct. At trial, Dr. Renner described several examples of what 

he characterized as bad behavior by Mr. Key and his agents during the performance of 

the contract. Mr. Key testified to his own version of events, and the trial court apparently 

credited Mr. Key’s testimony over Dr. Renner’s on this issue. See Richards v. Liberty 

Mut. Ins. Co., 70 S.W.3d 729, 733-34 (Tenn. 2002) (Generally, “findings with respect to 

credibility and the weight of the evidence . . . may be inferred from the manner in which 

the trial court resolves conflicts in the testimony and decides the case.”). 

When asked to review a trial court’s determinations of witness credibility and the 

weight to be afforded particular testimony, we grant considerable deference to the trial 

judge who had the opportunity to observe the witnesses’ demeanor and hear their in-court 

testimony. Estate of Walton v. Young, 950 S.W.2d 956, 959 (Tenn. 1997); Saddler v. 

Saddler, 59 S.W.3d 96, 101 (Tenn. Ct. App. 2000). We will not overturn a trial court’s 

assessment of credibility on appeal absent clear and convincing evidence to the contrary. 

Wells v. Tenn. Bd. of Regents, 9 S.W.3d 779, 783 (Tenn. 1999). We find no basis in this 
9

record to overturn the trial court’s determination that Mr. Key’s conduct does not 

preclude the application of equitable estoppel.8

Our conclusion that equitable estoppel applies to these facts does not end the 

inquiry. Equitable estoppel is not an affirmative cause of action. Deal v. Tatum, 

No. M2015-01078-COA-R3-CV, 2016 WL 373265, at *8 (Tenn. Ct. App. Jan. 29, 2016). 

It merely removes the oral agreement from the operation of the statute of frauds. Id.; see

also Smith, 2005 WL 3132370, at *9. Thus, we must consider the claim that Mr. Key 

cannot recover because he was the first party to materially breach the agreement. 

B. BREACH OF CONTRACT

“Ordinarily, a party who first materially breaches may not recover under the 

contract.” Madden Phillips Constr., Inc. v. GGAT Dev. Corp., 315 S.W.3d 800, 813 

(Tenn. Ct. App. 2009). Dr. Renner maintains that the first breach occurred when 

Mr. Key denied him access to the power line. But Mr. Key claims that Dr. Renner 

breached first by refusing to pay his share of the construction costs and to execute a 

formal written easement. 

The trial court found that Dr. Renner breached the agreement, not Mr. Key, and 

we agree. Dr. Renner’s refusal to grant an express easement deprived Mr. Key of a 

material benefit of the agreement. See McClain v. Kimbrough Constr. Co., 806 S.W.2d 

194, 199 (Tenn. Ct. App. 1990) (listing the factors for determining whether a breach is 

material). Because Dr. Renner was the first to breach, Mr. Key’s failure to continue his 

performance is not a bar to his recovery. 

C. SPECIFIC PERFORMANCE

Finally, we consider the defendants’ challenge to the court’s order directing 

specific performance. Specific performance is an equitable remedy commonly awarded 

in cases involving real property. GRW Enters., Inc., 797 S.W.2d at 614. The decision as 

to whether specific performance is warranted in a given case is entrusted to the sound 

 

8 The defendants filed a motion to supplement the record with an affidavit from Kenneth Wilkins 

describing various additional examples of post-trial unneighborly behavior by Mr. Key and others. While 

the rules of appellate procedure give this Court discretion to consider certain post-judgment facts, 

“consideration generally will extend only to those facts, capable of ready demonstration, affecting the 

positions of the parties or the subject matter of the action such as mootness, bankruptcy, divorce, death, 

other judgments or proceedings, relief from the judgment requested or granted in the trial court, and other 

similar matters.” Tenn. R. App. P. 14(a). “This rule is not intended to permit a retrial in the appellate 

court.” Id. advisory comm’n cmt. We decline to exercise our discretion to consider additional evidence 

relevant to issues already litigated in the trial court. See Duncan v. Duncan, 672 S.W.2d 765, 767 (Tenn. 

1984) (cautioning appellate courts not to use Rule 14 to renew factual issues from the trial).
10

discretion of the trial court. Id. “An abuse of discretion occurs when the trial court 

causes an injustice by applying an incorrect legal standard, reaches an illogical result, 

resolves the case on a clearly erroneous assessment of the evidence, or relies on 

reasoning that causes an injustice.” Gonsewski v. Gonsewski, 350 S.W.3d 99, 105 (Tenn. 

2011).

Here, the defendants have not challenged the trial court’s decision that specific 

performance was the appropriate remedy, per se. Instead, they argue that we should 

reverse the grant of specific performance because the trial court awarded Mr. Key a 

permanent easement “through property currently owned by Gwendolyn Renner.” 

It is undisputed that Gwendolyn Renner is not a party to this action. See Overby v. 

Overby, 457 S.W.2d 851, 852 (Tenn. 1970) (describing the methods for bringing a party 

before the court). Personal jurisdiction is obtained through proper service of process. 

Turner v. Turner, 473 S.W.3d 257, 271 (Tenn. 2015); see Tenn. R. Civ. P. 4.04-4.05. 

Without personal jurisdiction, the court lacked the power to issue a judgment affecting 

Ms. Renner or her real property. See Turner, 473 S.W.3d at 271.

Ordinarily, we would vacate the court’s order and remand this case for joinder of a 

necessary party to allow Mrs. Renner notice and an opportunity to be heard. See Tenn. R. 

Civ. P. 19.01; St. Clair v. Evans, No. 829, 1988 WL 102767, at *2 (Tenn. Ct. App. Oct. 

6, 1988) (vacating and remanding when trial court ordered a resulting trust in favor of a 

nonparty). But Mrs. Renner no longer owns the real property at issue. After the trial, 

Mrs. Renner conveyed to Mr. Key the seven-acre strip of property between Fish Hatchery 

Road and the upper Renner Trust property encompassing the new road and the power 

line.9 Under these unique circumstances, vacating the judgment and remanding the case 

would serve no purpose other than delaying resolution of the matter.

Even so, a decree for specific performance should enforce the contract as it was 

made by the parties. Inman v. Union Planters Nat’l Bank, 634 S.W.2d 270, 272 (Tenn. 

Ct. App. 1982). Rather than simply enforcing the parties’ agreement, the court included 

additional provisions for constructing a gate, maintaining the road, and the division of 

future costs. “Courts cannot make contracts for parties. They can only enforce the 

contract which the parties themselves have made.” McKee v. Cont’l Ins. Co., 234 S.W.2d 

830, 831 (Tenn. 1950); see also Parsons v. Hall, 199 S.W.2d 99, 100 (Tenn. 1947) (“The 

Court will not make a contract for the parties and the agreement sought to be enforced 

specifically must show beyond doubt that the minds of the parties actually met and that 

they themselves made the agreement.”). Thus, we vacate those portions of the court’s 

 

9 Mr. Key filed a motion to supplement the record on appeal with the warranty deed evidencing 

the conveyance from Mrs. Renner and a copy of the survey of the land conveyed. See Tenn. R. App. P. 

14(b). Because these post-judgment facts are “capable of ready demonstration,” undisputed, and affect 

the position of the parties, we exercise our discretion to grant the motion. Id. 14(a).
11

judgment that go beyond the enforcement of the parties’ agreement and those provisions 

that purport to affect Mrs. Renner. See Couch v. Couch, No. 03A01-9312-CH-00457, 

1994 WL 715731, at *5 (Tenn. Ct. App. Dec. 21, 1994) (vacating the portion of the 

judgment that purported to affect a nonparty). 

III.

For the foregoing reasons, we vacate those portions of the court’s judgment that 

expand the parties’ agreement and those portions that purport to affect Gwendolyn 

Renner. Specially, we vacate those portions of the judgment requiring erection of a gate 

on the road and providing for future maintenance of the road. We affirm the judgment in 

all other respects.

_________________________________

W. NEAL MCBRAYER, JUDGE
12

APPENDIX