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Dement Construction Company, LLC v. Nemeth

Court of Appeals of Tennessee, Nashville

December 20, 2016


          Session Date: October 11, 2016

         Appeal from the Circuit Court for Rutherford County No. 63359 J. Mark Rogers, Judge

         This case arises from landowners' counter-suit for damages allegedly resulting from a construction company's use of the landowners' property to store excess topsoil from a road construction project. Following a trial, the jury returned a verdict in favor of the construction company, finding that the construction company was not responsible for the alleged damage to the property. The landowners appeal, asserting that the trial court made erroneous evidentiary rulings and failed to properly instruct the jury. Finding no error, we affirm the trial court.

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

          G. Sumner R. Bouldin, Jr., Murfreesboro, Tennessee, for the appellants, Lucas C. Nemeth, Molly Nemeth, and Mischa Nemeth.

          Edwin E. Wallis, Jr., Jackson, Tennessee, and Evan Cope and Nicholas C. Christiansen, Murfreesboro, Tennessee, for the appellee, Dement Construction Company, LLC.

          Andy D. Bennett, J., delivered the opinion of the court, in which Richard H. Dinkins and Kenny W. Armstrong, JJ., joined.



         In the summer of 2011, Dement Construction, LLC ("Dement") was engaged in a road construction project for the City of Murfreesboro in Rutherford County, Tennessee. Dement entered into an oral agreement with Lucas Nemeth to store topsoil on Nemeth's property located at 2887 Barfield Road, Murfreesboro, Tennessee ("the Property") during the course of the construction project.

         On August 12, 2011, Dement filed a complaint against Lucas Nemeth and his wife, Molly Nemeth (collectively, "the Nemeths"), alleging that the Nemeths "failed to permit Dement to retrieve the topsoil, " and sought a writ of replevin, temporary injunction, compensatory damages, and punitive damages. Mischa Nemeth, Lucas Nemeth's brother, was later added as a party to the lawsuit due to his ownership interest in the property in question. On October 31, 2011, the trial court held a hearing on Dement's request for injunctive relief, and on November 10, 2011, entered an order allowing Dement to remove the topsoil from the Nemeths' property upon posting a bond for any damages associated with the removal.

         On November 10, 2011, the Nemeths filed an amended answer and counterclaim seeking monetary relief. Specifically, the Nemeths alleged that Dement "intentionally misrepresented the fact that Dement intended to occupy several acres of Nemeth's property, and to waste material thereon, by telling Nemeth that Dement would only have 'a couple loads' spill over onto Nemeth's property from the temporary construction easement, " and that Dement operated heavy equipment on the Property which caused damage to the Property. On January 31, 2012, Dement filed a reply to the Nemeths' counterclaim. Several ensuing motions and orders were filed unrelated to the issues on appeal, and a pretrial conference was held on February 19, 2015, at which Dement declared that it was not seeking monetary damages against the Nemeths.

         The issues on appeal arise from a five-day jury trial which was held on the Nemeths' counterclaim. Lucas Nemeth, co-owner of the Property; Randy Dickerson, a soil scientist; William Huddleston, a civil engineer; Jackie Wilson, a grading superintendent at Dement Construction; Mischa Nemeth, co-owner of the Property; Russell Parrish, an appraisal expert; and James Reed, an engineer and land surveyor, testified during the trial.

         Following the testimony of Mischa Nemeth, the trial court solicited written, anonymous questions from the jury in accordance with Tenn. R. Civ. P. 43A.03. The jurors proposed the following three questions to be asked of Mischa Nemeth:

(1) Was building Veterans Parkway a free improvement to your property?
(2) How much would you estimate your property value increased after Veterans Parkway was put in?
(3) Would you rather Veterans Parkway not be put in and your property not be used to temporarily store the soil and rock?

         The attorneys for both parties engaged in a lengthy discussion of the questions with the trial court judge outside the presence of the jury. The Nemeths' attorney objected to the questions, stating, "Objection to relevance. Has nothing to do with any of the issues in this suit. If it were a condemnation involving - - some of them would have some relevance. This isn't a condemnation." The trial court overruled the objection and allowed the questions to be asked of Mischa Nemeth.

         Russell Parrish, an appraisal expert for the Nemeths testified next. The Nemeths' attorney posed a series of questions to Mr. Parrish regarding the concept of eminent domain and special benefits. The following dialogue occurred:

[Nemeths' Attorney]: Okay. Now, let me ask you about some of those concepts. First explain to me the concept in the eminent domain world of a special benefit?
[Dement's Attorney]: I'm going to object. Can we approach?
. . . .
(The following proceedings were had before the Court and out of the ...

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