### FILED May 21, 1999 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

RUTH L. WILLIAMS, ) C/A NO. 03101-9807-CH-00239 ) Plaintiff-A ppellant, ) LOUDON CHANCERY ) v. ) HON. F RANK V. WILL IAMS, III ) CHANCELL OR JAMES BOTTS and wife, BRENDA ) BOTTS, ) AFFIRMED ) AND Defendants-Appellees. ) REMANDED

CHR IS RAL LS, M aryville, for Plaintif f-Appe llant. REX A. D ALE, JOHN SON & D ALE, Lenoir City, for Defendants-Appellees.

O P I N I

O N Franks, J.

In this action, the issue is the width of plaintiff’s right- of-way across a portion of defendants’ property . The Trial Court det ermined the width t

o be 25 feet and the plaint

iff has appealed. Plaintiff Ruth Wil

liams and her husband Murray , now deceased, owned a tract of land in Loudo n Coun ty. In 1975, the W illiams swap ped a tract o f land with C.L. Williams,to gain access t o Highway 321 (formerly Highway 95). The land acquired b y C.L. William s is now o wned b y the Creeks. It is u ncontested that Ruth Williams possess es a sixty-foot wide easement runni ng from the northwest cor ner of the Creek property

to Highway 321.2 On No vember 1 1, 1975, pla intiff and h er late husba nd sold pa rt of their property t

o defendant James Botts.The deed provided a twenty-five-foot wide
easemen t beginning at the northw est corner o f the prope rty and runnin g east to Highway 321. On April 6, 1978,the Williams sol d a tract to Lar

ry and Robin Young, and by a deed dated June 30, 1978, the Will

iams granted the Youngs a twenty-fivefoot ea semen t extend ing fro m the so uthwe st corne r of the p roperty to Highw ay 321. On January 15, 1979, t

he Williams sold anot

her tract t

o Carroll Price and granted a twenty-five-f oot easem ent extend ing from th e southw est corner o f the prope rty to Highway 321. Murray Will iams died in 1979, and James Botts eventual ly acquir ed both Price a nd You ngs’ tracts. B otts purcha sed the tract w hich is the su bject of this dispute from Ruth Will iams in August 1994. Both par ties signed a

correction deed on December 15, 1994, to clar ify a matte

r not here in di spute. Neither the original
warra nty deed nor the correct ion dee d men tions an y easeme nt.

The parties st

ipulated tha

t Loudon County requir es a fifty -foot wide strip to co nsider th e land f or dedi cation a s a coun ty road.

This action was fil

ed in 1997, alleging that the plaintiff posse ssed a sixty- foot easement, and s ought reformation of t he two deeds to reflec

t the sixt y-foot
ease men t. Sh e alle ged that t he o miss ion w as ba sed o n mu tual m istak e or a ltern ative ly, a unilate ral mista ke indu ced by th e Botts ’ fraud ulent co nduct.

Upo n tria l, the Cha ncel lor h eld th at Ru th W illiam s pos sess ed a s ixtyfoot ea semen t extend ing fro m Hig hway 3 21 to th e north west co rner of the Cre ek tract, and a twenty-five-foot wide easement thereafter across the Botts’ tr acts. “[R]eview of findings of fact by the trial court in ci

vil actions

shall be de novo upon the record of the t rial court, accompanied by a pr esumption of the correctness of t

he finding, unle ss the preponderance of the evidence is

otherwise.” T.R. A.P. 13(d). The sa me pr esumption doe s not

appl y t o con clusions

of la w.3 The plaintiff cont

ends that the Trial Court erred i n not recognizing and invoking James Botts’ judicial a dmission that t

he plaintiff

possessed a fift

y-foot
easem ent exte nding f rom the southw est corn er of the Youn g tract to Highw ay 321. All of th e deed s for the Price an d You ng tracts refer to a twen ty-five-fo ot easem ent. James Botts testified that he “assu med” this easeme nt extended to the northe rn boundary of his t

wenty-five- foot easement associated with one of the t racts he had purcha sed fro m the W illiams. H e stated “ I think it’s side by sid e.”

The sworn testimony

at trial of a party t

o a case is a conclusive admission , binding up on him o r her in the disp osition of the case, unless there is credible evide

nce of other facts

which would negate the effect of the fact admitt

ed by a party. Osborne v. Hartford Accident & Indem. Co. , 476 S.W.2d 256 (Tenn.App. 1971). In th is case, the T rial Court ex amined th e deeds fo r the Price an d Youn g tracts and determined that

the proper boundary

line for a port

ion of the Price and Young tract s ext end ed in to th e mid dle o f the purp orte d six ty-fo ot ea sem ent. A ccor ding ly, the Chancellor found cr edible evidence t

o support his fi

nding of a single t

wenty-fivefoot wid e easeme nt. Botts’ testim ony was eq uivocal an d is negated by the eviden ce to the contrary. The evidence d oes not preponde rate against the Trial Court’s determ ination o n this issu e.

The plaintiff al so argues that t he Trial Court err

ed in ruling agai

nst her on her claim of mutual mi stake or unil ateral mist ake induced by fra

ud or concealment of material fact

s. In order t

o reform a written i

nstrument for mist

ake, there must ha

ve been either a mutual m istake, or a mistake of one p arty influenced by the other’s fraud. McMillin v. Great S. Corp. , 480 S.W.2d 152 (Tenn.App. 1972). A “mistake” is an act which would not have been done, or an omission which would not have occurred, but fr

om ignorance, forget

fulness, ina

dvertence, mental

incompetence, surprise , misplac ed con fidenc e, or imp osition, a nd it mu st be mu tual or f raudul ent.4

Town of McMinnville v. Rhea, 316 S .W.2d 46 (Te nn.Ap p. 1958 ).

Plaintiff ar

gues that the par

ties’ la ck of discussion conce

rning the easement, and the fa ilure of the deeds to me ntion it is evidence that the parties were operating u nder a mu tual mistake . The Trial C ourt, in findin g that plaintiff failed to prove he r claim, said: “T here’s bee n no show ing of a m utual mistak e here. M r. Botts clearly intended the 25-foot

easement when the last deeds were prepared . .. and I think those deeds

are valid and ref

lect the agre

ement of the parti

es exactly

as they exist ther e . . . “. The ev idence prepon derates in favo r of the T rial Cou rt’s conc lusion. James Botts test

ified that he

intended for the pl

aintiff to ha

ve only a twenty

-five-foot
ease men t. He testif ied th at the only e asem ent th e par ties e ver d iscu ssed was twe ntyfive feet wide. Addit

ionally , the plaint

iff did not mention the sixty-foot easement at the closing. The surveys done for bot h the original

warranty deed and t

he correction deed depict the northern edge of the twen ty-five-foot easement as the sou thern bounda ry of the adjoin ing tract.

The Trial Court als o found against the plaintiff on her claim of unilat eral mistake ind uced by frau d. He said:

There’s been no misrepr esentation made by

the Botts to her

of any material fact

, been no concealment on t he part of the Botts of any material fact

that Ms. Willi ams was entitled t o know about. There was no reliance on her pa

rt of any misr

epresentation of a material fact, no resulting da

mage to her because of any representat

ion made by the defenda nts or any frau dulent con cealment o f a fact that th e defend ants had a duty to disclose to her. Again, the evidenc e does not prepon derate against the Trial Cou rt’s findings. The Tri al Court found that a lthough Murray Will

iams may have once intended a sixt

y-foot ease

ment, the proof was ins ufficient t

o find that James Bott

s was ever aware of the deceased’ s intention. Additionall y, the Trial Court noted tha t the plaintiff was i

ntelligent

and articulat

e and did not appear t

o be under the control

or5

influence of Botts . He also found that pl aintiff was not conf

used or coerced at t

he clos ing. T he te stim ony o f the attor ney w ho h and led th e clo sing and his s ecre tary, suppo rted the c onclus ion reac hed by th e Trial C ourt.

Finally, plaintiff co ntends that th e defend ants defrau ded her. Sh e lists five “bad ges of fra ud” wh ich she claim s are the bas is of this frau d. As prev iously stated, t he Trial Court found no fr aud practiced by

the defendants,and made extensive findings on the i ssue of fraud and the plaintiff’s mental condition. The evidence does not pre ponde rate aga inst the T rial Cou rt’s find ings. T.R .A.P. R ule 13( d).

The judgment of the Trial Court is affir

med and the cause remanded with the co st of the app eal assessed to the appe llant.

__________________________ Herschel P. Franks, J.
CONCUR:

___________________________ Houston M. Godd ard, P.J.

___________________________ Charles D. Susano, Jr., J.