City of Murfreesboro v. Montgomery ( 1997 )

IN THE COURT OF APPEALS OF TENNESSEE
WESTERN SECTION AT NASHVILLE
______________________________________________
CITY OF MURFREESBORO, A From the Rutherford County
Municipal Corporation in Circuit Court, No. 37469
Rutherford County, State of The Honorable James L.
Tennessee, Weatherford, Judge
Plaintiff-Appellee, AFFIRMED AND REMANDED
C.A. No. 01A01-9704-CV-00193
COMAS MONTGOMERY, Steven A. Stinson of Murfreesboro
SHIRLEY NEELY MONTGOMERY, K. Gregory Tucker, Of Counsel
SHERRY NEELY NUNLEY, and For Appellants
HOWARD SIMPKINS, as
Co-Executors of the EMMA V. Thomas L. Reed, Jr. and
NEELY ESTATE; Jerry E. Farmer of Murfreesboro
For Appellee
Defendants-Appellants.
____________________________________________________________________________FILED
MEMORANDUM OPINION1
December 19, 1997
___________________________________________________________________________
CRAWFORD, J. Cecil W. Crowson
Appellate Court Clerk
This is a condemnation case. Defendants, Comas Montgomery, Shirley Neely
Montgomery, Sherry Neely Nunley, and Howard Simpkins, co-executors of the Emma V. Neely
estate, appeal the judgment of the trial court awarding possession of the property in question to
plaintiff, City of Murfreesboro. The compensation to be paid defendants has not been
adjudicated, and this appeal relates only to the right of the city to take the property.
The city’s St. Clair Street Seniors’ Center is located at the intersection of St. Clair Street
and Walnut Street in Murfreesboro, and its property includes the better part of the north end of
a city block. Approximately half of the southern part of this same block is occupied by
Westbrook Tower, a retirement home for senior citizens. The Neely estate property at 601 North
Walnut Street is a lot fronting approximately 75 feet on Walnut and extending back along the
northern boundary of the Westbrook Tower property.
In 1994, the senior center began considering expansion plans, and the city purchased
some parcels of property in the block in anticipation of the expansion. In December of 1994,
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Rule 10 (Court of Appeals). Memorandum Opinion. -- (b) The 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. When 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 a subsequent unrelated case.
defendant, Comas Montgomery, acting as spokesperson for the defendants approached the city’s
mayor and the city manager inquiring if the city had any interest in purchasing the subject
property. The city expressed interest at that time and wanted to agree on appraisal of the
property. Mr. Montgomery objected to the appraiser selected by the city and understood that
another appraiser would be used. Mr. Montgomery testified that he had no further contact with
the city regarding the appraisal or any other interest of the city in acquiring the property.
However, the city council minutes shortly after the contact state that the city manager informed
the city council that Mr. Montgomery called and advised him that the family had decided not to
sell the property. In the meantime, preliminary architectural work was being performed in
connection with the planned expansion, and the city had acquired a lot to the north of the Neely
property for this purpose.
In making the preliminary assessments, it was determined that there was a need to
relocate a sewer line and that this would probably have to be done by acquisition of the Neely
property. The city manager brought this matter before the city council at its February 8, 1996,
meeting and requested council to approve condemnation of the property since the parties had
indicated that they did not want to voluntarily sell the property. Mr. Montgomery heard about
the meeting while it was in progress and immediately went to the city council chambers. He
persuaded the council to rescind its vote for condemnation and to attempt to negotiate an
acquisition by purchase. Appraisals were obtained, and the parties tried to negotiate but were
unable to agree upon an acceptable price. In the meantime, it was determined that an easement
for the sewer line would be sufficient. The defendants offered to give an easement to the city
at no cost. Later it was determined that a small parcel of land at the rear of the Neely property
was needed for the sewer line. Subsequently, the long range planning committee for the
senior citizen center determined that the entire lot was needed for future expansion. The Neely
heirs wanted $195,000.00 for the property, but the city’s appraisals indicated the value was only
$95,000.00.
The defendants’ attorney was allowed to speak at the city council meeting where he
raised the issues of fraud, misrepresentation and bad faith on the part of the city. At the
attorney’s request the city again agreed to delay a condemnation vote in order to see if the matter
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could be worked out by agreement. The senior citizens center long range planning commission
advised the council that time was of the essence and they needed this property for expansion
purposes. When the parties were unable to reach an agreement as to the value, the city council
voted to condemn the property.
The condemnation complaint was filed and $95,000.00 plus was tendered as the higher
of the city’s two appraisals. After a nonjury trial confined to the issue of the taking, the trial
court entered its order awarding possession to the city. The defendants have appealed and
present five issues for review which we will now consider. The first two issues for review, as
stated in appellants’ brief, are:
1. The trial court erred in permitting the exercise of eminent
domain where the condemning authority has concealed the true
purpose of the taking, made fraudulent misrepresentations, acted
in bad faith and acted arbitrarily and capriciously.
2. The trial court erred in determining that the City of
Murfreesboro had identified a need for the property.
Appellants assert that the city’s stated reason for the condemnation was a mere
subterfuge, and that the city made fraudulent misrepresentations, acted in bad faith, and acted
arbitrarily and capriciously. Apparently, these assertions are premised on the fact that the initial
proposal for condemnation only stated a need for a sewer line to cross the subject property. At
a later date, the reason for the taking was expanded by virtue of the need expressed by the senior
center’s long range planning committee. The record reflects that the architect for the property
testified concerning this need and the necessity for the expansion to include the subject property.
We have reviewed the record, which includes the transcripts of the pertinent city council
meetings, and from this review we conclude that the city did not act unfairly, that there was no
subterfuge, and what is really at issue is a question of money. The trial court found that there
was no abuse of power by the city and that there was no evidence to indicate “that the city
council acted fraudulently, arbitrarily, capriciously, or in bad faith.” The evidence does not
preponderate against the trial court’s findings, T.R.A.P. 13(d), and we concur with these
findings. In American Tel. & Tel. Co. v. Proffitt, 903 S.W.2d 309 (Tenn. App. 1995), this Court
said:
“[B]road discretion is necessarily vested in those to whom the
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power of eminent domain is delegated, in determining what
property is necessary for the public purpose, with respect to the
particular route, line, or location of the proposed work or
improvement, and . . . the courts will not disturb their action in
the absence of fraud, bad faith, or gross abuse of discretion.” 26
Am.Jur. Eminent Domain § 113. The Tennessee Supreme Court
echoed this rule in Williamson Co. v. Franklin & Spring Hill
Turnpike Co., 143 Tenn. 647 (1920), wherein it opined, “It is
everywhere settled that, in the absence of a clear and palpable
abuse of power, the determination of the necessity for the taking
and what property shall be taken is not a question for the
judiciary, but for the legislature or the body to whom the right of
eminent domain is delegated by it.”
Id. at 311-312.
The testimony in the city council minutes reflect that the senior center legitimately
determined that there is a need for the Neely property, that the city was reluctant to condemn the
property without first negotiating, and that the condemnation was authorized only when
negotiations failed. Defendants assign some sinister motive to the city simply because the long
range planning changed, creating a need for the property. The architect’s testimony explained
the process of the changes and the necessity therefor. The trial court apparently believed this
testimony. The determination of the credibility of witnesses rests in the first instance with the
trial court and will be given great weight by the appellate court. Haverlah v. Memphis Aviation,
Inc., 674 S.W.2d 297, 302 (Tenn. App. 1984).
These issues are without merit.
The third issue for review, as stated in appellants’ brief, is:
3. The trial court erred in failing to recuse as a result of the
appearance of impropriety and thus set aside the FINAL
JUDGMENT OF POSSESSION AND CONDEMNATION.
Because of the recusal of Judge Don Ashe, the Supreme Court appointed the Honorable
James L. Weatherford to preside over this case. Judge Weatherford has a brother living in
Murfreesboro and when he came to Murfreesboro the evening before trial he had dinner with his
brother. The brother is also a member of the Murfreesboro Housing Authority. Appellants assert
that because Judge Weatherford had dinner with his brother the evening before trial and his
brother is on the Murfreesboro Housing Authority, this created an appearance of impropriety.
We find nothing in the record to indicate that Judge Weatherford’s brother was even
remotely interested in the acquisition of the subject property. The housing authority had nothing
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to do with establishing a need for the subject property, nor did they make any effort whatsoever
to acquire the property. There is nothing in the record to indicate any impropriety on the part
of Judge Weatherford nor even an appearance of impropriety as asserted by appellants. The trial
court correctly denied the motion for recusal. This issue is totally without merit.
The fourth issue for review, as set out in appellants’ brief, is:
4. The trial court erred in totally precluding the Defendants from
taking the deposition of City Attorney Tom Reed and/or from
introducing testimony relative to the City Attorney’s Office’s
actions relative to this condemnation.
Appellants assert that they should have been allowed to take the deposition of the city
attorney to deal with the actions of the city attorney involving the eminent domain process. It
appears that the appellants are merely complaining about the attempts to negotiate the price for
the property, and that the city attorney seemed to indicate that it was a “waste of time” to do so.
Appellants assert that this indicates a failure to negotiate in good faith. Appellants have failed
to cite any authority to the effect that the city was required to negotiate for the purchase of the
property. The deposition testimony would not affect the judgment of the court. Defendants
also assert that the trial court erroneously ruled concerning several evidentiary objections. Since
appellants did not set out the questions and the specific objections, we are having some difficulty
in determining exactly what appellants’ complaint is. It does appear, however, that they
complain about certain portions of Engineer Huddleston’s testimony. We have reviewed the part
of the transcript referred to, and it appears that either this witness showed a lack of knowledge
about what he was asked, or he was asked to give his impression of what the city’s intent was.
His impression of the city’s intent is irrelevant because there was no foundation laid to show that
he was authorized to act for or commit the city.
Appellants further complain that they were not allowed to show a statement made by
Jerry Farmer. However, when the objection was made and sustained, no offer of proof was made
and we don’t know what the answer would have been; therefore, we cannot address the
objection. Home Insurance Co. v. Glen Falls Ins. Co., 675 S.W.2d 486, 488 (Tenn. App.
1984). We will not be able to consider the remaining evidentiary objections for that reason as
well. This issue is also without merit.
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The next issue, as stated in appellants’ brief, is:
5. The trial court erred in denying the Appellants a stay and
either a very reasonable or minimal stay bond under the facts and
circumstances of this case.
This Court previously entered an order on February 27, 1997, affirming the trial court on
this issue. There is nothing in the record to warrant a change of that position. This issue is
without merit.
The judgment of the trial court is affirmed, and the case is remanded for such further
proceedings as may be necessary. Costs of the appeal are assessed against the appellants.
Appellee has requested that we declare this a frivolous appeal. Although this is very close to a
frivolous appeal, we will decline the invitation at this time.
_________________________________
W. FRANK CRAWFORD,
PRESIDING JUDGE, W.S.
CONCUR:
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DAVID R. FARMER, JUDGE
____________________________________
HEWITT P. TOMLIN, JR.
SENIOR JUDGE
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