Robert W. Fink v. Fred M. Crean ( 2006 )

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
JULY 12, 2006 Session
ROBERT W. FINK, ET AL. v. FRED M. CREAN, ET AL.
Direct Appeal from the Chancery Court for Williamson County
No. 23346 Timothy E. Easter, Chancellor
No. M2005-01364-COA-R3-CV - Filed on December 21, 2006
In this appeal, we are asked to determine whether the chancery court properly awarded the plaintiffs
a judgment of $90,000. The defendants made improvements to their real property, placing a paved
driveway over a previously existing logging trail. The plaintiffs noticed an increased water runoff
from storms onto their own real property, which abutted the defendants’ property, and they attributed
this increase to the improvements made by the defendants. The plaintiffs filed a complaint, and the
action was referred to a judicial settlement conference. The result was the parties’ entering into an
agreed order to have engineers confer on a solution, however, a compromise was never reached.
After a bench trial, the chancery court issued a memorandum opinion in which it found the
defendants’ actions to be an actionable temporary nuisance for which they were ordered to pay
$14,144.50 in damages. The court also ordered the defendants to hire an engineer and workers to
perform construction under one of two possible options, or to comply with a third option of payment
for the cost of building a retaining wall, within 180 days from final judgment to prevent further
damage to the plaintiffs’ property. The court further ordered that its memorandum opinion be
reduced to writing in an order and final judgment to be drafted by the plaintiffs. The plaintiffs
drafted an order, which the trial court and counsel for all parties signed, however this order
substituted part of the court’s language regarding the costs of a retaining wall with the specific dollar
amount of $90,000. After 180 days had expired, and the defendants had begun but not completed
construction per their chosen option, the plaintiffs filed for an execution of judgment in the amount
of $90,000. The chancery court stayed the execution of judgment for thirty days, during which the
parties’ experts were to confer as to the sufficiency of the defendants’ actions in addressing the
nuisance. When this time period expired with no agreement between the experts or the parties, the
chancery court entered an order for judgment in favor of the plaintiffs for $90,000. The defendants
filed a timely notice of appeal to this Court. We affirm.
Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Chancery Court Affirmed
ALAN E. HIGHERS, J., delivered the opinion of the court, in which W. FRANK CRAWFORD , P.J., W.S.,
and HOLLY M. KIRBY , J., joined.
Christina Ferrell, Franklin, TN, for Appellants
Gregory L. Cashion, Samuel J. Welborn, Nashville, TN, for Appellees
MEMORANDUM OPINION1
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
This case began with a dispute between the Defendants, Fred M. Crean and Deborah Crean
(the “Creans” or “Appellants”), and the Plaintiffs, Robert W. Fink and Glenda Fink(the “Finks” or
“Appellees”). In 1993, the Creans made improvements to their property; specifically, they had a
paved driveway built on top of an existing logging trail. Thereafter, the Finks noticed an increase
in water runoff from the Creans’ upper property to the Finks’ lower property. The Finks filed a
complaint in the Williamson County Chancery Court on May 25, 1995, alleging that the increased
water runoff was a result of the Creans’ driveway improvements. The complaint sought temporary
and permanent injunctions, compensatory damages, “a reasonable attorney fee, discretionary and
other costs for bringing this action.”
The parties hired their own experts to provide advice on how best to remedy the situation.
The Finks hired engineer Louis P. Mishu, and the Creans employed the services of engineer Joseph
H. Ballard. Both engineers inspected the Creans’ property and even agreed as to a solution,2 but
neither engineer’s recommendation was implemented by the Creans at that time. The parties agreed
1
Tenn. R. Ct. App. 10 states:
This Court, with the concurrence of all judges participating in the case, may affirm,
reverse or modify the actions of the trial court by memorandum opinion when a
formal opinion would have no precedential value. W hen a case is decided by
memorandum opinion it shall be designated “MEMORANDUM OPINION,” shall
not be published, and shall not be cited or relied on for any reason in any unrelated
case.
2
The solution recommended by both M r. Mishu and Mr. Ballard was as follows:
A. Install a swale on the uphill side of Mr. Crean’s driveway with the discharge
point located in a different watershed. The swale should tie to the existing swale
at the entrance gate.
B. Grade Mr. Crean’s driveway so water is directed to the swale.
C. Install underdrains, to control ground water, which could discharge towards the
Finks [sic] property.
As additional information, the underdrain should be installed along the uphill side
of the driveway with a plug and crossdrain installed at 75-foot intervals. Also,
install asphalt curb on the downhill side near the entrance gate to prevent water
from going onto the adjacent property during heavy rainfall.
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to refer the Finks’ action to a judicial settlement conference, which resulted in an agreed order on
November 24, 1997. However, because of a failure of the parties’ engineers to agree on a solution,
the agreed order ultimately had no binding effect on the parties or the present litigation. In 2000, the
Finks hired another engineer, Gregg M. Clingerman (“Clingerman”) who inspected the properties
and put forth his own recommendations in a report.3
On March 11–12, 2004, a trial on the merits was held in the Chancery Court of Williamson
County. On April 15, 2004, Chancellor Timothy L. Easter issued a memorandum opinion in which
he found that the Finks had suffered damages to their property of $14,144.50 as a result of the
Creans’ driveway construction. The court held that the evidence did not support a finding that the
Finks had sustained any damages beyond this amount. The court also held that the manner in which
the driveway was constructed had created an actionable temporary nuisance, which could be
corrected by the expenditure of labor or money, and that the Finks were entitled to such correction
at the expense of the Creans. The court ordered the Creans to pay the Finks $14,144.50 in damages,
representing monies spent for materials, repairs, and consultants. The court also ordered the Creans
to elect one of three options for preventing further runoff damage to the Finks’ property. The options
were set out as follows:
The Plaintiffs are further entitled to relief from the continued
concentrated storm water runoff from the Defendants’ driveway to the
Plaintiffs’ property. To accomplish this relief, the Defendants shall
employ an appropriate engineer to perform a drainage study and
design which addresses the impact of the existing drainage into the
existing storm drain located near the entrance of the Defendants’
driveway on Beech’s Tavern Trail. This study shall address what, if
any, impact this solution would have on altering the natural
watersheds in the area. If this drainage study finds that there would
be no negative impact to the existing watershed, would create no
further problems for the Defendants and that it would meet all
3
Clingerman, in his 2000 report, stated that the most logical and least expensive remedy (known as
“Recommendation 1") would be for the Creans “to install a curb along the northerly side of their driveway to direct
stormwater flow into the existing french drain trench . . . [p]lug the ends of all the 4-inch pipes that run under the
driveway to force and/or keep stormwater run-off in the existing driveway french drain system.”
Clingerman went on to state that “Option 1" could not guarantee that seepage problems would not
occur, and that if this method were pursued, the Creans should hire an engineer “to perform a drainage study and design
a system so not to impact the existing drainage system . . . .” He advised that this could be accomplished “by installing
a small detention basin on the Crean’s [sic] property to detain and control the concentrated stormwater run-off . . . .”
The report further recommended that, “[i]f we assume that no work is done on the Crean’s [sic]
property and in order to make sure no surface run-off or seepage through the hillside is directed onto the Fink’s [sic]
driveway[,]” a retaining wall be built to control the water runoff. Clingerman’s estimated cost of this retaining wall was
$81, 724, and he admitted that it “could be more or less depending on the final length of the retaining wall and how the
retaining wall has to be designed based on the soil properties contained in a geotechnical report.” These latter two
recommendations were collectively designated “Recommendation 2" by the trial court in its May 11, 2004 memorandum
opinion.
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governmental storm water runoff regulations, then the Defendants
shall undertake to implement the recommendation of Gregg
Clingerman . . . , as his first recommendation. The Court agrees that
this is the most logical and probably the least costly solution. This
solution may need altering a bit to accommodate the construction of
Defendants’ gate post, which have [sic] gone up since completion of
the Clingerman Engineering Report.
If the drainage study indicates a possible negative impact to the
Defendants as a result of a change in the natural watershed or creates
problems for other property owners, the Defendants shall have the
options of installing a storm detention basin on their property to
detain and control the concentrated storm water runoff into the
existing drainage system or pay for the costs of installing the
retaining wall on the Plaintiffs’ southern edge of their driveway as set
forth as recommendation 2 on page 3 of the Clingerman report . . . .
The court allowed the Creans ninety days from the date of final judgment to select and retain an
engineer, and allowed them an additional ninety days to implement either recommendation one or
two of the Clingerman report, totaling 180 days in which to remedy the Finks’ storm water runoff
problem. Finally, the court’s memorandum opinion ordered counsel for the Finks to prepare a final
judgment consistent with the findings in the memorandum opinion.
After an order had been drafted, which counsel for both parties signed, the trial court entered
the judgment on August 26, 2004. The injunctive options set forth in this order were similar to those
provided in the memorandum opinion, except that instead of the court’s original provision for the
third option to “pay for the costs of installing the retaining wall on the Plaintiffs’ southern edge of
their driveway,” there was the following language: “pay damages to the Plaintiffs in the amount of
$90,000, which amount is subject to post-judgment interest from the date of entry of this Order and
Final Judgment.” There was no mention of attorneys’ fees in this order, or in the memorandum
opinion entered by the court.
Over 180 days later,4 on March 9, 2005, the Creans filed a document with the chancery court
entitled “Status Report Regarding Satisfaction of Judgment.” In this report, the Creans stated that
payment of $14,144.50 had been tendered to the Finks on December 6, 2004, and that post-judgment
interest on that amount had been paid on December 15, 2004. The Creans submitted that they had
retained the services of engineer Gary O’Brien(“O’Brien”), and they attached to the motion
O’Brien’s final report on the runoff problem. The Creans explained that they had chosen to pursue
the option known as “Clingerman Recommendation Number 1” after discussing it with O’Brien, and
4
During this time period, on September 24, 2004, Paul C. Ney, then counsel for the Creans, filed a
motion to withdraw and substitute W illiam Squires as new counsel, which the Chancellor granted by order on September
28, 2004.
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that this option was “ready to be implemented by Mr. Richard Spann, and await[ed] only an
improvement in weather for construction to be complete.” In their status report, the Creans went on
to describe the various steps that they had undertaken between September 2004 and March 2005 to
comply with the court’s final order, which allegedly included: submitting initial inquiries to a
number of engineers, requesting bid estimates, inviting engineers to view the site, hiring O’Brien,
inquiring to asphalt paving construction companies, having their counsel review O’Brien’s report
for compliance with the court’s order, and discussing a construction schedule with Richard Spann
based on the O’Brien report. Based upon these statements, the Creans submitted to the court that
they were in substantial compliance with the court’s order, and that full compliance would occur
upon the weather’s improvement.
On March 9, 2005, the Finks notified the Creans of their intent to execute a $90,000
judgment pursuant to the August 26, 2004 final judgment. On March 10, 2005, the Creans filed a
motion to quash the execution and levy. In this motion, the Creans claimed that on March 8, the
construction crew that had been hired for the alteration of their driveway performed measurements,
that on March 9, stone and other materials to be used were cut and measured, that on March 10, the
crew began trenching around the driveway for “curbing installation” as recommended by the
engineering report, and that the foundation for this curbing had been scheduled to begin that day.
The chancery court held a hearing on this motion on March 14, and on April 4 the court ordered a
stay of execution of the judgment for 30 days from the hearing. The court also ordered that
Clingerman be allowed to inspect the Creans’ driveway to see if the work being performed was in
accord with “Clingerman Recommendation Number 1.” The court further ordered the Creans to pay
the Finks’ attorney’s fees associated with the stay of execution issue, which amounted to $1,397.88.
On April 18, 2005, the Creans filed a motion for clarification of the April 4 order, or in the
alternative, relief from the final order of August 26, 2004, as well as a memorandum in support
thereof. Meanwhile, a dispute arose between the parties as to whether the work implemented per
O’Brien’s recommendations conformed with the recommendations set forth in Clingerman’s 2000
report.5 On May 2, the chancery court heard argument on the Creans’ motion for clarification or
relief. On May 11, the Chancellor entered an order denying the Creans’ motion for clarification or
relief, and awarded the Finks a judgment of $90,000 plus costs. The court also denied any pre-
judgment or post-judgment interest and attorneys’ fees through the date of the order. The Creans
filed a notice of appeal to this Court on June 7, 2005.6
5
This dispute is reflected in the transcript record by a letter from Clingerman to the Finks’ counsel filed
with the court on April 29, as well as the Finks’ response to the Creans’ motion for clarification or relief. In the letter,
Clingerman stated, in relevant part: “After inspecting the work and reviewing my report and testimony it is my opinion
that the work completed does not meet recommendation Number 1 contained in my April 2000 engineering report.”
6
The notice of appeal was filed by W illiam Squires as counsel for Appellants. On September 12, 2005,
Christina Ferrell filed with the chancery court a notice of appearance as new counsel for the Creans.
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II. ISSUES PRESENTED
The Creans filed a timely notice of appeal,7 and present the following issues for review:
1. Whether the chancery court erred in awarding a $90,000 judgment to the Finks; and
2. Whether the chancery court erred in its choice of the proper measure of damages.
For the following reasons, we affirm.
III. DISCUSSION
Before proceeding to the Creans’ arguments on appeal, we must first address a preliminary
issue raised by the Finks. In their response brief on appeal, the Appellees challenge the timeliness
of the Creans’ appeal to this Court. The Finks allege that the August 26, 2004 order was the final
judgment in this case, rather than the May 11, 2005 order. They argue that any issues not raised by
the Creans for appeal within 30 days of the August 26, 2004 order are now time barred. We find the
Finks’ arguments on this issue to be unpersuasive for the following reasons.
This appeal was brought pursuant to Rule 3(a) of the Tennessee Rules of Appellate
Procedure, which clearly states:
Except as otherwise permitted in rule 9 and in Rule 54.02 Tennessee
Rules of Civil Procedure, if multiple parties or multiple claims for
relief are involved in an action, any order that adjudicates fewer than
all the claims of the rights and liabilities of fewer than all the parties
is not enforceable or appealable and is subject to revision at any time
before entry of a final judgment adjudicating all the claims, rights, and
liabilities of all the parties.
TENN . R. APP . P. 3. As interpreted by our supreme court, Rule 54.02 of the Tennessee Rules of Civil
Procedure allows parties to finalize certain other non-final judgments by first obtaining certification
from the trial court that the court has “directed the entry of a final judgment as to one or more but
fewer than all of the claims, and . . . ma[d]e an express determination that there is no just reason for
delay. Fox v. Fox, 657 S.W.2d 747 (Tenn. 1983). The court stated that “[i]n the absence of such
direction and determination by the trial judge, the order is interlocutory and can be revised at any
time before the entry of judgment adjudicating all the claims and rights and liabilities of all parties.”
Fox, 657 S.W.2d at 749 (citing Stidham v. Fickle Heirs, 643 S.W.2d 324, 325 (Tenn. 1982)).
In the Finks’ original complaint, the prayer for judgment reflects that the Appellees sought
multiple claims for relief: temporary and permanent injunctions against the Creans, compensatory
7
The Finks dispute that the notice of appeal was timely filed in this case. W e disagree and provide an
explanation in the Discussion section below.
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damages, and “a reasonable attorney fee, discretionary and other costs for bringing this action.” The
Chancellor did not rule on the issue of attorneys’ fees in his April 15, 2004 memorandum opinion,
and the issue was similarly not addressed by the corresponding August 26, 2004 “Order and Final
Judgment” drafted by counsel for the Finks.
Even assuming that both the memorandum opinion and the order drafted by counsel for the
Finks disposed of their claims as to injunctive relief, compensatory damages, and costs of the
proceedings, as noted above, the court did not ultimately adjudicate the issue of attorneys’ fees until
its order of May 11, 2005, in which it awarded the $90,000 judgment to the Appellees and
specifically denied additional attorneys’ fees through the date of the order.8 If either party wished
to make the judgment final on August 26, 2004, they could have proceeded under Rule 54.02 of the
Tennessee Rules of Civil Procedure seeking certification by the trial court, but they did not do so.
Applying Rule 3 of the Tennessee Rules of Appellate Procedure, all of the claims and rights
of the parties were not decided until the order entered on May 11, 2005, and as such, this order was
the appealable final judgment. Since the Appellants filed their notice of appeal on June 7, 2005,
within the appropriate thirty day period, this notice of appeal was timely filed and the matter is
properly before this Court.
A. Propriety of the $90,000 Award
The first argument by Appellants to be considered is whether the chancery court erred in
awarding a $90,000 judgment to the Finks. Appellants argue that this amount was not supported by
the evidence in the record. The Creans posit this argument by directing this Court’s attention to the
absence of a $90,000 amount in the chancery court’s April 15, 2004 memorandum opinion.
Appellants note that the memorandum opinion “carefully outlines all of the conclusions regarding
liability and damages as well as the future remedial actions that the Creans were to implement in
order to address the storm runoff issue . . . .” The Creans state that the first occurrence of a $90,000
damage award in the record occurred in the August 26, 2004 order drafted by the Finks’ counsel.9
Furthermore, Appellants point to the absence of a rationale for the calculation of these damages in
the August 26, 2004 order. The Creans further argue that the August 26, 2004 order “was intended
to allow them the option of paying damages, rather than installing a storm detention drain basin in
the event that their engineering study did not support implementation of the Clingerman
Recommendation.”
8
W hile the court did award $1,397.88 in attorneys’ fees to the Finks in the April 4, 2005 order staying
execution of judgment, it clearly indicated that this award was limited to those fees associated with the stay of execution
issue.
9
At oral argument, the Finks’ counsel, Mr. Cashion, claimed that the August 26, 2004 order was the
result of a cooperative endeavor involving himself and Mr. Paul N ey, who was then counsel for the Creans. As Mr.
Cashion admitted that there is nothing in the record to reflect this, this Court shall henceforth consider the order to have
been drafted by Mr. Cashion, as called for by the trial court’s May 15, 2004 memorandum opinion.
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Appellees contend that the $90,000 judgment imposed by the court represents the present day
cost of installing a retaining wall and is supported by the evidence in the record. In support of this
argument, the Finks point to the chancery court’s May 15, 2005 memorandum opinion, specifically
the section listing the Creans’ available options and containing the language, “or pay for the costs
of installing the retaining wall on the Plaintiffs’ southern edge of their driveway as set forth as
recommendation 2 on page 3 of the Clingerman Report . . . .” Appellees note that within this report,
written in 2000, Clingerman stated that the cost of erecting a retaining wall pursuant to “Clingerman
Recommendation 2" was $81,724. Appellees argue: “Given that this calculation was approximately
five years old at the time the Order and Final Judgment was entered, it is clear that the trial court’s
damage figure of $90,000.00, which was agreed to by counsel for both parties, is, in light of
inflation, reasonable under the circumstances.”
The existence of a temporary nuisance on the Creans’ property affecting the Finks’ property
is not at issue in this appeal. While several issues are in dispute in this highly fact-driven case, our
review is limited to the trial court’s $90,000 award. We generally will review only those issues
presented for review by the parties. TENN . R. APP . P. 13(b) (2005). We find that Appellants’ failure
to include a transcript or statement of evidence on appeal directs us to affirm the trial court’s implicit
finding that $90,000 represents the cost of building a retaining wall and its subsequent award in
Appellees’ favor.
The trial court’s April 15, 2004 memorandum opinion set forth extensive findings of fact
based upon the trial record, and the record before us shows that the trial court relied upon both the
recommendations of Joseph Ballard in 1995 and the 2000 Clingerman Report as a basis for imposing
the three equitable remedy options available for implementation by the Creans. Specifically, the
court found that the solution set forth by Joseph Ballard in his September 20, 1995 letter to the
Creans’ attorney was “a logical and economical resolution” to the storm runoff problem, and that this
solution was also consistent with “Recommendation #1” from Clingerman’s engineering report in
2000. The court gave the Creans the option to implement this remedy, but if their engineers
determined that it would have a negative impact to the Creans, the Creans also had the option to
implement “Recommendation 2" by either installing a storm detention basin “or pay[ing] for the
costs of installing the retaining wall. . . .”
From our review of the technical record, it appears that the $90,000 amount in the August
26, 2004 order was inserted into the court’s enumerated options should the Creans choose not to act
on the other two proposed methods of performance. Counsel for both parties and the chancellor
signed this order. The trial court’s thorough findings of fact as to liability of the Creans and
feasability of the experts’ recommendations are reflected in the appellate record in the April 15, 2004
memorandum opinion, however there is no transcript of evidence or statement of evidence from trial
for this Court to review on appeal. The basis of the $90,000 amount awarded to the Finks is not
completely apparent from the technical record. The only monetary figure approaching the $90,000
amount that is present in the record before us is in Clingerman’s engineering report, which estimated
that the cost of installing a retaining wall in 2000 would be $81,724. Appellees cite to this figure
as providing a basis for their including the $90,000 amount in the August 26, 2004 order.
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The amount of damages to be awarded is a fact question which, upon appeal from a non-jury
judgment, is reviewed by this Court de novo upon the record accompanied by a presumption of the
correctness of findings of fact unless the evidence preponderates otherwise. Rinehart v. State, No.
01-A-01-9309-BC-00428, 1994 Tenn. App. LEXIS 204, at *7 (Tenn. Ct. App. Apr. 13, 1994) (citing
TENN . R. APP . P. Rule 13(d); Foster v. Bue, 749 S.W.2d 736 (Tenn. 1988)).
Where no transcript of the evidence is filed, there is a presumption that the proceedings were
proper and that the evidence supported the judgment. Fisher v. Fisher, No.
W1998-00864-COA-R3-CV, 2000 Tenn. App. LEXIS 173, at *10 (Tenn. Ct. App. March 20, 2000)
(citing Wilson v. Hafley, 189 Tenn. 598, 226 S.W.2d 308, 311 (1949); Hollingsworth v. Safeco Ins.
Cos., 782 S.W.2d 477, 479 (Tenn. App. 1989)). The appellate court must assume that the record
would support the trial court's findings. Id. (citing Sherrod v. Wix, 849 S.W.2d 780, 783 (Tenn. Ct.
App. 1992)).
We find that the August 26, 2004 order inserting the $90,000 amount in place of the earlier
memorandum opinion’s “or pay[ing] for the costs of installing the retaining wall” language
effectively operated as a finding by the trial court that this dollar amount represented such costs.
Since there is no transcript or statement of evidence before us that might allow us to consider
whether the evidence preponderates against this finding, we must therefore presume this amount to
be correct and affirm the judgment of the trial court.
B. Measure of Damages
Appellants’ second argument on appeal is closely related to the first. As we perceive the
issue, Appellants submit that if a measure of damages was appropriate in this instance, the chancellor
erred by applying the wrong standard by which to measure the award. The Creans again suggest that
the award is punitive, rather than compensatory, in nature, and that the record is devoid of any
findings that the award would allow the Finks to restore their property to its pre-nuisance condition
or that the award was for the purpose of building a retaining wall. Appellants argue that after a
dispute arose as to the sufficiency of the work that they had performed on their property, the
chancellor incorporated the $90,000 judgment into its final order of May 11, 2005, effectively
awarding a “windfall” to the Finks that was not justified by the proof. Appellants liken this award
to punitive damages “directed at punishment of the Creans for failing to meet the specifications of
[Clingerman], who determined only after substantial work was done that those specifications were
not met.” Conversely, Appellees argue that the $90,000 award is compensatory, and not “a
windfall,” and that this award is a proper measure of damages enabling the Finks to restore their
property to its pre-nuisance condition in light of the Creans’ “utter failure” to implement
“Clingerman Recommendation 1.”
“Whether the trial court has utilized the proper measure of damages is a question of law that
we review de novo.” Beaty v. McGraw, 15 S.W.3d 819, 829 (Tenn. Ct. App. 1998). The parties
have stipulated that a temporary nuisance exists. As recognized by both parties, “[a] temporary
nuisance is one that can be corrected with the expenditure of labor and money.” Largent
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Contracting., Inc. v. Dement Constr. Co., No. W1999-02736-COA-R3-CV, 2001 Tenn. App.
LEXIS 266, at *19–20 (Tenn. Ct. App. Apr. 17, 2001) (citing Caldwell v. Knox Concrete Prod. Inc.,
391 S.W.2d 5 (Tenn. Ct. App. 1964)). Where the nuisance is temporary, damages to property
affected by the nuisance are recurrent and may be recovered from time to time until the nuisance is
abated. Pate v. Martin, 614 S.W.2d 46, 48 (Tenn. 1981). The measure of such damages is the injury
to the value of the use and enjoyment of the property. See id. This Court has also held:
A party that has been subjected to a nuisance may be entitled to
several types of damages. These damages may include the cost of
restoring the plaintiff's property to its condition prior to the creation
of the nuisance, personal damages such as inconvenience and
emotional distress, and injury to the use and enjoyment of her
property. Such damages are not mutually exclusive.
Pryor v. Willoughby, 36 S.W.3d 829, 831 (Tenn. Ct. App. 2000) (emphasis added) (citing Citizens
Real Estate v. Mountain States Dev. Corp., 633 S.W.2d 763, 767 (Tenn. Ct. App. 1981)).
Appellants do not take issue with the trial court’s award of $14,144.50 to the Finks, in fact
the record shows that this amount was paid in full in December of 2004. In its April 15, 2004
memorandum opinion, the court measured this damage amount according to its own findings of the
Finks’ out-of-pocket costs in dealing with the nuisance, namely materials, repairs, and consultant
costs. As discussed above, the record in its present state does not indicate whether the court ever
articulated findings as to the costs of installing a retaining wall, but the $90,000 amount was
nonetheless incorporated into its order on August 26.
Again, because Appellants filed no transcript of evidence for us to review, we must presume
to be correct the trial court’s finding as to the amount of money necessary to install a retaining wall.
When no transcript of the evidence is filed, we will conclusively presume that the proceedings were
proper and that the evidence supported the judgment. Fisher v. Fisher, No.
W1998-00864-COA-R3-CV, 2000 Tenn. App. LEXIS 173, at *10 (Tenn. Ct. App. March 20, 2000)
(citing Wilson v. Hafley, 189 Tenn. 598, 226 S.W.2d 308, 311 (1949); Hollingsworth v. Safeco Ins.
Cos., 782 S.W.2d 477, 479 (Tenn. App. 1989)). The appellate court must assume that the record
would support the trial court's findings. Id. (citing Sherrod v. Wix, 849 S.W.2d 780, 783 (Tenn. Ct.
App. 1992)). The trial court was within its discretion in ordering that corrective action be taken to
address the nuisance that was present on the Creans’ property. The options set forth in the
memorandum opinion involved either the installation of a curb according to Clingerman’s
“Recommendation 1,” the installation of a storm detention basin per this same recommendation, or
payment for the cost of installing a retaining wall. These options involved the expenditure of labor
and money, and nothing in the appellate record suggests that they were improperly measured by the
trial court. See Largent Contracting., Inc., 2001 Tenn. App. LEXIS 266, at *19–20. We have
already determined that the trial court found that $90,000 accurately represented the cost of installing
a retaining wall, and we must presume this amount to be correct. We further hold that the trial court
employed a proper measure of damages, and accordingly, we affirm the judgment of the trial court.
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IV. CONCLUSION
For the reasons set forth herein, we affirm the judgment of the chancery court. Costs of this
appeal are taxed to Appellants, Fred M. Crean and Deborah Crean, and their surety, for which
execution may issue if necessary.
ALAN E. HIGHERS, JUDGE
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