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IN THE COURT OF APPEALS OF TENNESSEE WESTERN SECTION AT NASHVILLE ______________________________________________ CITY OF MURFREESBORO, A Municipal Corporation in Rutherford County, State of Tennessee, Plaintiff-Appellee, COMAS MONTGOMERY, SHIRLEY NEELY MONTGOMERY, SHERRY NEELY NUNLEY, and HOWARD SIMPKINS, as Co-Executors of the EMMA V. NEELY ESTATE; From the Rutherford County Circuit Court, No. 37469 The Honorable James L. Weatherford, Judge AFFIRMED AND REMANDED C.A. No. 01A01-9704-CV-00193 Steven A. Stinson of Murfreesboro K. Gregory Tucker, Of Counsel For Appellants Thomas L. Reed, Jr. and Jerry E. Farmer of Murfreesboro For Appellee

Defendants-Appellants. ____________________________________________________________________________

FILED

MEMORANDUM OPINION1 December 19, 1997 ___________________________________________________________________________ CRAWFORD, J. This is a condemnation case. Cecil W. Crowson Appellate Court Clerk 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 2

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 3

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

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