Session Date: October 11, 2016
from the Circuit Court for Rutherford County No. 63359 J.
Mark Rogers, Judge
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.
R. App. P. 3 Appeal as of Right; Judgment of the Circuit
Sumner R. Bouldin, Jr., Murfreesboro, Tennessee, for the
appellants, Lucas C. Nemeth, Molly Nemeth, and Mischa Nemeth.
E. Wallis, Jr., Jackson, Tennessee, and Evan Cope and
Nicholas C. Christiansen, Murfreesboro, Tennessee, for the
appellee, Dement Construction Company, LLC.
D. Bennett, J., delivered the opinion of the court, in which
Richard H. Dinkins and Kenny W. Armstrong, JJ., joined.
D. BENNETT, JUDGE
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.
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.
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.
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.
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
(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?
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.
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
. . . .
(The following proceedings were had before the Court and out
of the ...