I N T H E C O U R T O F A P P E A L S A T K N O X V I L L E FILED March 24, 1999
Cecil Crowson, Jr. Appellate C ourt Clerk
R O B E R T A . K E E N E R , a n d ) K N O X C O U N T Y T H E K E E N E R C O R P O R A T I O N ) 0 3 A 0 1 - 9 8 0 6 - C V - 0 0 1 9 3 ) P l a i n t i f f s - A p p e l l a n t s ) ) ) H O N . W H E E L E R R O S E N B A L M , v . ) J U D G E ) ) K N O X C O U N T Y , T E N N E S S E E a n d ) T H E R O G E R S G R O U P , I N C . ) ) D e f e n d a n t s - A p p e l l e e s ) V A C A T E D A N D R E M A N D E D
D O N A L D E . O V E R T O N a n d G L E N N A W . O V E R T O N O F K N O X V I L L E F O R A P P E L L A N T S
J O H N K N O X W A L K U P , A t t o r n e y G e n e r a l a n d R e p o r t e r , N A S H V I L L E , a n d C Y N T H I A L . P A D U C H , S e n i o r C o u n s e l , S t a t e A t t o r n e y G e n e r a l ' s O f f i c e , K n o x v i l l e , F O R A P P E L L E E K N O X C O U N T Y , T E N N E S S E E
R . F R A N K L I N N O R T O N , G E O F F R E Y D . K R E S S I N a n d R . D A V I D B E N N E R O F K N O X V I L L E F O R A P P E L L E E T H E R O G E R S G R O U P , I N C .
O P I N I O N
Goddard, P.J.
Robert A. Keener and the Keener Corporation appeal a
summary judgment granted in favor of Knox County and The Rogers
Group, Inc., in a suit seeking as to Knox County compensation on
the theory of inverse condemnation and against Rogers, for
damages to their property as a result of the construction of what is known in the record as the Henley Connector in downtown
Knoxville.
In the Plaintiffs’ case against Knox County it is their
theory that notwithstanding the fact a settlement was reached as
to the condemnation case against Mr. Keener, by which Knox County
acquired property necessary for the construction of the
Connector, the resulting activities of the contractors during
construction amounted to a further taking of their property for
which they were entitled to compensation.
As to Rogers, the suit seeks damages on the theory of
negligence for the same activities and strict liability for
blasting done by Rogers’ subcontractor, Arnold Construction
Company, which ultimately settled the Plaintiffs’ claim.
As best we understand the Trial Judge’s memorandum
opinion, he found that the clause in the settlement decree as to
the condemnation suit, which released Keener Corporation for any
incidental damages, barred a suit in inverse condemnation, and as
to Rogers that no blasting was done by it on the dates alleged
and, consequently, it could not be liable.
The Plaintiffs’ appeal raises the following two issues:
I. WHETHER OR NOT THE TRIAL COURT ERRED IN GRANTING KNOX COUNTY’S SUMMARY JUDGMENT
II. WHETHER OR NOT THE TRIAL COURT ERRED IN GRANTING THE ROGER’S GROUP’S MOTION FOR SUMMARY JUDGMENT
2 As pertinent to this appeal the following pleadings and
orders are contained in the record:
1. November 28, 1994. Original complaint filed against
Knox County, Rogers and Arnold.
2. February 17, 1995. Amended complaint as to Knox County
in response to a motion for a more specific statement of claim.
3. February 24, 1995. Amended and supplemental complaint
as to all three Defendants.
4. August 16, 1995. Judgment entered granting summary
judgment to Rogers and Knox County.
5. December 11, 1995. Second amended and substituted
complaint.
6. October 1, 1997. Third amended and supplemental
7. December 20, 1997. Order striking references to Rogers
and “State of Tennessee personnel” from third amended and
supplemental complaint.
8. January 15, 1998. Order of compromise and dismissal as
to Arnold.
We first observe before going to the merits of this
case that the standard used for determining the propriety of
summary judgment is set out in Byrd v. Hall, 847 S.W.2d 208, 214
(Tenn.1993):
Rule 56 comes into play only when there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. Thus, the issues that lie at the heart of evaluating a summary judgment motion are: (1) whether a factual dispute exists; (2) whether the disputed fact is material to the outcome of the case, and (3) whether the disputed fact creates a genuine issue for trial.
3 The decree in the condemnation suit contained the
following provision:
IT IS FURTHER ORDERED that the award set out hereinabove includes the actual fair cash market value of the property and property rights acquired in this cause and of any and all damages, whether actual or incidental, to the remainder of the property of the Defendant, and including full settlement of all claims for compensation due the Defendant because of the taking of the property described above and because of the construction of Highway Project No. 47002-2118-44, 1-40-7(62)387 in Knoxville, Knox County, Tennessee, as it affects Tract No. 189-S.
As to the claim against Knox County, the amended and
substituted complaint filed on February 24, 1995, sought recovery
only on the theory of inverse condemnation, and the Trial Court,
upon examining the foregoing order, concluded that the language
in the order regarding incidental damages was sufficiently broad
to preclude a case by the Plaintiffs under this theory.
The case of Burchfield v. State of Tennessee, 774
S.W.2d 178 (Tenn.App.1988), addresses, although in a different
context, the facts that must be shown to sustain a finding that a
taking has occurred. After reviewing a number of cases touching
on the question of a taking, we concluded the following (at page
183):
Upon consideration of all the cases, we conclude that whether a taking has occurred depends on the facts of each case, specifically the nature, extent and duration of the intrusion.
4 In the present case the affidavit of Mr. Keener
relative to the damages suffered by the Plaintiffs and the taking
of his property is set out in Appendix.
Upon viewing the affidavit of Mr. Keener in the light
most favorable to the Plaintiffs and indulging all reasonable
inferences in support of the Plaintiffs’ position, we conclude
that, as to many of the complaints1 he has enumerated, factual
disputes remain as to whether the complaints meet the test of
Burchfield relative to a temporary taking.
In reaching our conclusion, we are mindful of the case
of State v. Rascoe, 181 Tenn. 43, 178 S.W.2d 392 (1944), which
holds that--as pointed out in the brief of Knox County--parties
“are not entitled to compensation for damages naturally and
unavoidably resulting from the careful construction and operation
of the public improvement which damages are shared generally by
the owners whose lands lie within the range of inconveniences
necessarily attending that improvement.”
Before leaving the claim against Knox County, we note
it has raised two issues which merit attention. First, it
contends in the third amended and substituted complaint, filed on
October 1, 1997, Knox County was not named as a party defendant,
but this is understandable because the suit against Knox County
had long since been resolved by the Trial Court’s entry of the
summary judgment on August 16, 1995. Indeed, this is apparent
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I N T H E C O U R T O F A P P E A L S A T K N O X V I L L E FILED March 24, 1999
Cecil Crowson, Jr. Appellate C ourt Clerk
R O B E R T A . K E E N E R , a n d ) K N O X C O U N T Y T H E K E E N E R C O R P O R A T I O N ) 0 3 A 0 1 - 9 8 0 6 - C V - 0 0 1 9 3 ) P l a i n t i f f s - A p p e l l a n t s ) ) ) H O N . W H E E L E R R O S E N B A L M , v . ) J U D G E ) ) K N O X C O U N T Y , T E N N E S S E E a n d ) T H E R O G E R S G R O U P , I N C . ) ) D e f e n d a n t s - A p p e l l e e s ) V A C A T E D A N D R E M A N D E D
D O N A L D E . O V E R T O N a n d G L E N N A W . O V E R T O N O F K N O X V I L L E F O R A P P E L L A N T S
J O H N K N O X W A L K U P , A t t o r n e y G e n e r a l a n d R e p o r t e r , N A S H V I L L E , a n d C Y N T H I A L . P A D U C H , S e n i o r C o u n s e l , S t a t e A t t o r n e y G e n e r a l ' s O f f i c e , K n o x v i l l e , F O R A P P E L L E E K N O X C O U N T Y , T E N N E S S E E
R . F R A N K L I N N O R T O N , G E O F F R E Y D . K R E S S I N a n d R . D A V I D B E N N E R O F K N O X V I L L E F O R A P P E L L E E T H E R O G E R S G R O U P , I N C .
O P I N I O N
Goddard, P.J.
Robert A. Keener and the Keener Corporation appeal a
summary judgment granted in favor of Knox County and The Rogers
Group, Inc., in a suit seeking as to Knox County compensation on
the theory of inverse condemnation and against Rogers, for
damages to their property as a result of the construction of what is known in the record as the Henley Connector in downtown
Knoxville.
In the Plaintiffs’ case against Knox County it is their
theory that notwithstanding the fact a settlement was reached as
to the condemnation case against Mr. Keener, by which Knox County
acquired property necessary for the construction of the
Connector, the resulting activities of the contractors during
construction amounted to a further taking of their property for
which they were entitled to compensation.
As to Rogers, the suit seeks damages on the theory of
negligence for the same activities and strict liability for
blasting done by Rogers’ subcontractor, Arnold Construction
Company, which ultimately settled the Plaintiffs’ claim.
As best we understand the Trial Judge’s memorandum
opinion, he found that the clause in the settlement decree as to
the condemnation suit, which released Keener Corporation for any
incidental damages, barred a suit in inverse condemnation, and as
to Rogers that no blasting was done by it on the dates alleged
and, consequently, it could not be liable.
The Plaintiffs’ appeal raises the following two issues:
I. WHETHER OR NOT THE TRIAL COURT ERRED IN GRANTING KNOX COUNTY’S SUMMARY JUDGMENT
II. WHETHER OR NOT THE TRIAL COURT ERRED IN GRANTING THE ROGER’S GROUP’S MOTION FOR SUMMARY JUDGMENT
2 As pertinent to this appeal the following pleadings and
orders are contained in the record:
1. November 28, 1994. Original complaint filed against
Knox County, Rogers and Arnold.
2. February 17, 1995. Amended complaint as to Knox County
in response to a motion for a more specific statement of claim.
3. February 24, 1995. Amended and supplemental complaint
as to all three Defendants.
4. August 16, 1995. Judgment entered granting summary
judgment to Rogers and Knox County.
5. December 11, 1995. Second amended and substituted
complaint.
6. October 1, 1997. Third amended and supplemental
7. December 20, 1997. Order striking references to Rogers
and “State of Tennessee personnel” from third amended and
supplemental complaint.
8. January 15, 1998. Order of compromise and dismissal as
to Arnold.
We first observe before going to the merits of this
case that the standard used for determining the propriety of
summary judgment is set out in Byrd v. Hall, 847 S.W.2d 208, 214
(Tenn.1993):
Rule 56 comes into play only when there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. Thus, the issues that lie at the heart of evaluating a summary judgment motion are: (1) whether a factual dispute exists; (2) whether the disputed fact is material to the outcome of the case, and (3) whether the disputed fact creates a genuine issue for trial.
3 The decree in the condemnation suit contained the
following provision:
IT IS FURTHER ORDERED that the award set out hereinabove includes the actual fair cash market value of the property and property rights acquired in this cause and of any and all damages, whether actual or incidental, to the remainder of the property of the Defendant, and including full settlement of all claims for compensation due the Defendant because of the taking of the property described above and because of the construction of Highway Project No. 47002-2118-44, 1-40-7(62)387 in Knoxville, Knox County, Tennessee, as it affects Tract No. 189-S.
As to the claim against Knox County, the amended and
substituted complaint filed on February 24, 1995, sought recovery
only on the theory of inverse condemnation, and the Trial Court,
upon examining the foregoing order, concluded that the language
in the order regarding incidental damages was sufficiently broad
to preclude a case by the Plaintiffs under this theory.
The case of Burchfield v. State of Tennessee, 774
S.W.2d 178 (Tenn.App.1988), addresses, although in a different
context, the facts that must be shown to sustain a finding that a
taking has occurred. After reviewing a number of cases touching
on the question of a taking, we concluded the following (at page
183):
Upon consideration of all the cases, we conclude that whether a taking has occurred depends on the facts of each case, specifically the nature, extent and duration of the intrusion.
4 In the present case the affidavit of Mr. Keener
relative to the damages suffered by the Plaintiffs and the taking
of his property is set out in Appendix.
Upon viewing the affidavit of Mr. Keener in the light
most favorable to the Plaintiffs and indulging all reasonable
inferences in support of the Plaintiffs’ position, we conclude
that, as to many of the complaints1 he has enumerated, factual
disputes remain as to whether the complaints meet the test of
Burchfield relative to a temporary taking.
In reaching our conclusion, we are mindful of the case
of State v. Rascoe, 181 Tenn. 43, 178 S.W.2d 392 (1944), which
holds that--as pointed out in the brief of Knox County--parties
“are not entitled to compensation for damages naturally and
unavoidably resulting from the careful construction and operation
of the public improvement which damages are shared generally by
the owners whose lands lie within the range of inconveniences
necessarily attending that improvement.”
Before leaving the claim against Knox County, we note
it has raised two issues which merit attention. First, it
contends in the third amended and substituted complaint, filed on
October 1, 1997, Knox County was not named as a party defendant,
but this is understandable because the suit against Knox County
had long since been resolved by the Trial Court’s entry of the
summary judgment on August 16, 1995. Indeed, this is apparent
1 D i v e r s i o n o f t r a f f i c i s n o t c o m p e n s a b l e . T a t e v . C o u n t y o f M o n r o e , 5 7 8 S . W . 2 d 6 4 2 ( T e n n . A p p . 1 9 7 8 ) .
5 because of the motion and subsequent order striking any reference
to Knox County or Rogers.
By their second issue, Knox County contends a notice of
appeal was not timely filed because the summary judgment was
entered on August 16, 1995, and a notice of appeal was not filed
until January 29, 1998. It should be noted that the summary
judgment entered was not made a final judgment pursuant to Rule
54 of the Tennessee Rules of Civil Procedure, and was not ripe
for an appeal until the entry of the order of compromise and
dismissal as to Arnold, which resolved all issues as to all
parties.
As to Rogers, the Trial Judge’s grant of summary
judgment was predicated upon a finding that it did no blasting on
the dates alleged. However, there is an affidavit by John Corum,
an officer of the Keener Corporation, that blasting did occur on
those particular days. It may be that the Trial Court was saying
that, although blasting did occur by Arnold, the subcontractor,
none was done by the principal contractor, Rogers. The fallacy of
this reasoning, however, is that under the law of this State a
party causing damage by blasting is strictly liable, and the
general contractor is jointly liable with the subcontractor.
Walton-McDowell Co. v. Jackson, 5 Tenn. C.C.A. 324 (1914);
Cumberland Telephone & Telegraph Co. v. Stoneking, 1 Tenn. C.C.A.
241 (1911).
It might be contended that a settlement of the case
against the party doing the blasting, in this case Arnold, served
to release the general contractor, Rogers. While this would
6 ordinarily be true, the predicate for the suit against Rogers is
not vicarious liability, but Rogers’ independent negligence. In
this case it would appear that--if the facts upon trial remain
the same--under the teachings of McIntyre v. Balentine, 833
S.W.2d 52 (Tenn.1992), and the law of this State that the prime
contractor and the subcontractor are jointly liable in cases of
damages occurring by blasting, Rogers would be liable for 50
percent of any damages found to have been suffered by the
Plaintiffs.
For the foregoing reasons the judgment of the Trial
Court is vacated and the cause remanded for further proceedings
not inconsistent with this opinion. Costs of appeal are adjudged
one-half to the Plaintiffs and their surety and one-half to
Rogers.
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ H o u s t o n M . G o d d a r d , P . J .
C O N C U R :
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ H e r s c h e l P . F r a n k s , J .
( N o t P a r t i c i p a t i n g ) D o n T . M c M u r r a y , J .