IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
September 25, 2013 Session
MARKUM DOUGLAS v. PEGGY J. LOWE, ET AL.
Direct Appeal from the Chancery Court for Rutherford County
No. 10-CV-1055 Robert E. Corlew, III, Chancellor
No. M2012-02276-COA-R3-CV - Filed November 12, 2013
Plaintiff purchased landlocked property and filed suit against adjoining landowners to
establish an easement for a private road and for utilities pursuant to Tennessee Code
Annotated section 54-14-101, et seq. After the jury of view returned its verdict form
selecting a certain route for the easement, the plaintiff filed a notice of voluntary dismissal,
which the trial court granted. Defendants filed a motion to set aside the order of voluntary
dismissal without prejudice, which the trial court denied. Defendants appeal. We affirm.
Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Chancery Court Affirmed
A LAN E. H IGHERS, P.J., W.S., delivered the opinion of the Court, in which D AVID R. F ARMER,
J., and J. S TEVEN S TAFFORD, J., joined.
Josh A. McCreary, Murfreesboro, Tennessee, for the appellant, Peggy J. Lowe, et al
Amy J. Farrar, James A. Turner, Murfreesboro, Tennessee, for the appellee, Markum
Douglas
OPINION
I. F ACTS & P ROCEDURAL H ISTORY
Markum Douglas (“Plaintiff”) purchased landlocked property in rural Rutherford
County, Tennessee, in 2005. Several members of the Lowe family (“the Lowes” or
“Defendants”) live in houses on a neighboring farm. In 2010, Plaintiff filed a complaint to
have a private easement to landlocked property established pursuant to Tennessee Code
Annotated section 54-14-101, et seq. He named several members of the Lowe family as
defendants and sought to establish a private road for ingress and egress, in addition to a
utility easement, across the Lowes’ properties. Plaintiff alleged that the route across the
Lowes’ properties was “the most adequate and convenient outlet” from his land to a public
road. Other neighboring landowners were added as defendants later, as the Lowes argued
that alternative routes for the easement, across other properties, would be more direct,
convenient, and otherwise appropriate.
The matter was tried before a five-person jury of view on May 14-16, 2012, during
which time the jury of view traveled to the property to view the proposed locations of the
easements. The jury of view returned a verdict form selecting “the Daddy Green Road route”
for the easement, not the route across the Lowes’ properties.1 Thereafter, the trial court
entered an order noting the decision of the jury of view. Plaintiff filed a motion for mistrial,
alleging juror misconduct, which the trial court denied. Plaintiff also filed a motion to alter
or amend and a motion for new trial, raising various objections to the decision of the jury of
view. Before these motions were resolved, however, Plaintiff filed a notice of voluntary
dismissal, which the trial court approved by order on July 17, 2012. Defendants filed a
motion to alter or amend or set aside the order of voluntary dismissal without prejudice,
which the trial court denied.
II. I SSUES P RESENTED
Defendants frame the issue on appeal as “whether the trial court erred when it granted
a voluntary dismissal without prejudice after the jury of view had returned its verdict and the
Court had entered an Order confirming the jury of view report and where a dismissal would
prejudice a right vested in the Defendant/Appellant during the pendency of the case.”
1
The jury of view is “authorized to locate the easement or right-of-way at the place set out in the
petition or at any other place, care being taken to locate the easement or right-of-way where it will be of
service to the petitioners and occasion as little damage as practicable to the defendants.” Tenn. Code Ann.
§ 54-14-111.
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In the event that we conclude that Plaintiff was not entitled to a voluntary nonsuit,
then Plaintiff raises the following additional issues, in its posture as appellee:
1. Whether the trial court erred in failing to grant the Plaintiff’s motion for a mistrial on
the grounds of jury misconduct; and
2. Whether the jury of view’s verdict granting an easement across the Daddy Green route
should be set aside or modified because there is no water access available to Plaintiff
along the selected route.
For the following reasons, we affirm the decision of the trial court and remand for
further proceedings as may be necessary.
III. S TANDARD OF R EVIEW
We review the trial court’s denial of a motion to alter or amend, or a motion to set
aside a judgment, for abuse of discretion. Ussery v. City of Columbia, 316 S.W.3d 570, 574
(Tenn. Ct. App. 2009). “The abuse of discretion standard does not allow the appellate court
to substitute its judgment for that of the trial court, and we will find an abuse of discretion
only if the court applied incorrect legal standards, reached an illogical conclusion, based its
decision on a clearly erroneous assessment of the evidence, or employ[ed] reasoning that
causes an injustice to the complaining party.” Wright ex rel. Wright v. Wright, 337 S.W.3d
166, 176 (Tenn. 2011)) (quotations omitted).
IV. D ISCUSSION
“The procedure for condemnation of an easement across land obstructing access to
a public road is established by Tenn. Code Ann. § 54-14-101(a)(1).” Barge v. Sadler, 70
S.W.3d 683, 688 (Tenn. 2002). Tennessee Code Annotated section 54-14-101(a)(1)
provides, in pertinent part:
When the lands of any person are surrounded or enclosed by the lands of any
other person or persons who refuse to allow to the person a private road to pass
to or from the person's lands, it is the duty of the county court, on petition of
any person whose land is surrounded, to appoint a jury of view, who shall, on
oath, view the premises, and lay off and mark a road through the land of the
person or persons refusing, in a manner as to do the least possible injury to
those persons, and report to the next session of the court, which court shall, in
accordance with this part, grant an order to the petitioner to open such road .
. . . The damage adjudged by the jury shall, in all cases, be paid by the person
applying for such order, together with the costs of summoning and impaneling
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the jury.
“Thus, the statute provides that once the court finds that property is landlocked, a jury of
view must be appointed to determine the portion of private, adjoining land where the
placement of an easement will be least injurious.” Barge, 70 S.W.3d at 688. The jury of
view must actually “view” the landlocked property and the surrounding premises to make this
determination, and it must also assess the damages the petitioner must pay to the landowner
for use of the easement. Id. “It is only after a report by the jury of view is submitted that the
trial court ‘shall have the power to grant an order to the petitioner to open such road[.]’” Id.
(quoting Tenn. Code Ann. § 54-14-101(a)(1)).
The case before us requires us to determine at what point during private condemnation
proceedings may a petitioner no longer take a voluntary nonsuit without prejudice. This
Court considered a situation strikingly similar to the one before us in Wolfe v. Jaeger, No.
W2008-00923-COA-R3-CV, 2009 WL 723529 (Tenn. Ct. App. Mar. 19, 2009). In that case,
the plaintiff commenced a private condemnation action pursuant to Tennessee Code
Annotated section 54-14-101, et. seq, and the plaintiff moved for and was granted a voluntary
nonsuit pursuant to Tennessee Rule of Civil Procedure 41.01 after the jury of view filed its
report, but before the report was acted upon by the trial court. Id. at *1. The defendants filed
a motion to set aside the order granting the nonsuit, which the trial court denied. Id. As a
result, the defendants appealed to this Court and raised the following issue: “May the
Plaintiff, in a private condemnation suit, enter an order of dismissal, without prejudice, after
the Jury of View has retired to consider its verdict, reached a decision and filed its report or
verdict with the Court.” Id. at *2. We explained that the issue presented required an analysis
of “the application of Tennessee Rule of Civil Procedure 41.01, and the limitations thereto,
to a condemnation proceeding filed pursuant to Tennessee Code Annotated § 54-14-101, et.
seq.” Id. at *3.
Tennessee Rule of Civil Procedure 41.01 provides, in relevant part:
Subject to the provisions of Rule 23.05, Rule 23.06, or Rule 66 [not applicable
here] or of any statute, and except when a motion for summary judgment made
by an adverse party is pending, the plaintiff shall have the right to take a
voluntary nonsuit to dismiss an action without prejudice by filing a written
notice of dismissal at any time before the trial of a cause and serving a copy
of the notice upon all parties, and if a party has not already been served with
a summons and complaint, the plaintiff shall also serve a copy of the complaint
on that party; or by an oral notice of dismissal made in open court during the
trial of a cause; or in jury trials at any time before the jury retires to consider
its verdict and prior to the ruling of the court sustaining a motion for a directed
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verdict. . . .
In Wolfe, we explained at the outset that a jury of view is not the equivalent of a “jury” in a
jury trial for purposes of Rule 41.01 and its provision addressing jury trials. 2009 WL
723529, at *4. “The historical jury of view as provided for by the condemnation statutes
currently codified at Tennessee Code Annotated § 54-14-101, et. seq., was ‘merely for the
information of the [county] court and ex parte.’” Id. (quoting Hawkins v. Justices of
Trousdale County, 80 Tenn. 351 (1883)). Under the current statutory scheme, the jury of
view’s report may be contested by any party to the condemnation action. Id. (citing Tenn.
Code Ann. § 54-14-112(a) (2008)). If no objection is filed to the report of the jury of view,
or if objections are filed and heard and considered by the court, the report of the jury of view
may be confirmed by the court, or the court may set the report aside and order another writ
of inquiry. Id. (citing Tenn. Code Ann. § 54-14-112(b)). Alternatively, the trial court may
modify the report and grant the easement as it deems proper. Id. (citing Tenn. Code Ann. §
54-14-113). “Within 30 days from the trial court's order on the jury of view's report, either
party may appeal to the court and demand a ‘trial before a jury of twelve (12) persons to be
summoned and impaneled by the court in the usual way.’” Id. (quoting Tenn. Code Ann. §
54-14-114(a)). The demand for a trial by a full jury in accordance with section 54-14-114(a)
“shall be the exclusive remedy for relief from the finding of a jury of view and no other
appeal from the finding shall lie.” Tenn. Code Ann. § 54-14-114(b).
It is clear from these procedures that a decision of the jury of view, without more, is
not binding on the parties or the trial court, nor does it vest a right in either of the parties.2
See Hawkins v. Justices of Trousdale County, 80 Tenn. 351 (1883) (observing that the
report of the jury of view does not determine the rights of the parties). After discussing these
statutory procedures in Wolfe, we then turned to the issue of “whether the trial court may
grant a plaintiff's motion for voluntary dismissal without prejudice under Rule 41.01 after the
jury of view has filed its report, but before the trial court has acted on the report, in a private
condemnation proceeding under section 54-1[4]-101, et. seq.” 2009 WL 723529, at *5. The
Court discussed several older Tennessee cases that had considered the time-frame in which
a voluntary dismissal was permissible in the context of private condemnation proceedings.
Ultimately, the Wolfe Court concluded that “a voluntary nonsuit under Rule 41.01 may be
taken after the jury of view has filed its report until the trial court has confirmed the report
if no exceptions have been made, or if an exception has been made, after the court has
confirmed or modified the report following a hearing and before the plaintiff has exercised
2
Defendants argued on appeal that the decision of the jury of view vested them with an “assurance”
that the easement would not be placed on their property. This assumption illustrates a misunderstanding of
the lengthy procedural process required by the applicable statutory scheme, Tenn. Code Ann. § 54-14-101,
et seq.
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authority over the property.” Id. (emphasis added). “Simply stated, the plaintiff's right to
a voluntary nonsuit is extinguished upon an order of the court depriving the property owner
of the free and complete use of his property.” Id. at *6 (emphasis added) (citing Anderson
v. Smith, 521 S.W.2d 787, 791 (Tenn. 1975)). “After the court has disposed of exceptions
or objections, if any, and entered its order on the report of the jury of view, the remedy
available to either party, including a dissatisfied plaintiff, is not a nonsuit but an appeal [to
a full jury] pursuant to Tennessee Code Annotated § 54-14-114.” Id.
In Wolfe, the jury of view had already filed its report, but the trial court had not yet
acted upon the report when the plaintiff sought a voluntary nonsuit. Consequently, we
concluded that the plaintiff was entitled to take a voluntary nonsuit at that stage of the
proceedings, and we affirmed the trial court’s decision to deny the defendants’ motion to set
the order of voluntary dismissal aside. Id. at *6.
In the case before us, the Defendants/Appellants do not dispute the reasoning or
applicability of Wolfe. However, they claim that Wolfe is factually distinguishable because
in this case, Defendants claim, the trial court had acted upon the report of the jury of view
by entering an order confirming the report. Thus, according to Defendants, the Plaintiff’s
decision to seek a voluntary dismissal came too late. Plaintiff, on the other hand, argues that
the “verdict form” returned by the jury of view did not contain the requisite information to
constitute a proper “report” under the applicable statutes, but even if it did, Plaintiff argues,
the trial court’s order did not “confirm” the report of the jury of view in any event.
According to Plaintiff, the trial court simply entered an order “reciting” the results of the trial
and the decision reached by the jury of view, in order to provide a record of such, and the
order did not in any way approve, adopt, or confirm the jury of view’s decision.
In order to resolve these differing interpretations, we must examine the content and
effect of the trial court’s order. We must keep in mind that the trial court was obliged to
confirm the report of the jury of view, to set the report aside and order another writ of
inquiry, or to modify the report and grant the easement as it deemed proper. See Tenn. Code
Ann. § 54-14-112(b), -113. The order at issue was entered on June 6, 2012, and stated as
follows:
This matter came to be heard on May 14, 15 and 16, 2012 before
Chancellor Robert E. Corlew, III and a jury of view.
Prior to the seating of the jurors, the parties stipulated that [a third
alternative route] Route C as proposed by Defendants . . . was not a practical
route for the proposed easement to Plaintiff’s property, and accordingly agreed
to dismiss [the defendant property owners] whose property the proposed
easement route was to go across. . . .
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After deliberation, the jury of view reported that by a majority vote the
following easement should be established and set aside for the benefit of the
Plaintiff over the path known as Route B, Daddy Green Road, and continuing
on the gravel road to the east edge of the Douglas property. Four jurors,
[names omitted], signed the verdict. The fifth juror, [name omitted],
announced she was not in agreement as to the route selected and did not sign
the verdict form.
The Court adjourned the proceedings until a date when a hearing would
be set for the jury of view to hear further testimony and to determine the
damages the Defendant would be entitled for the easement set aside by the jury
of view for the Plaintiff.
All other matters are reserved pending further orders of the Court.
IT IS THEREFORE SO ORDERED.
We agree with Plaintiff’s reading of the order and find that the trial court’s order did not in
any way confirm, approve, or adopt the report of the jury of view. The first four paragraphs
of the order simply recite what occurred during the trial. With regard to the issue before us,
the trial court’s order merely stated that “the jury of view reported that by a majority vote the
following easement should be established and set aside.” (Emphasis added). After detailing
the events that transpired during trial, the court expressly directed that “[a]ll other matters are
reserved pending further orders of the Court,” and added, “IT IS THEREFORE SO
ORDERED.” This language falls far short of confirming or adopting the report of the jury
of view. From our reading of the trial court’s order, it simply acknowledged the finding of
the jury of view without expressly approving it. As stated in Wolfe, “the plaintiff's right to
a voluntary nonsuit is extinguished upon an order of the court depriving the property owner
of the free and complete use of his property.” 2009 WL 723529, at *6. There was no such
order here, and therefore, we find that Plaintiff was not barred from taking a voluntary
nonsuit at this point in the proceedings.
We note that our resolution of this issue was somewhat complicated by some
statements made in the trial court’s subsequent order on the Defendants’ motion to alter or
amend or set aside the order of voluntary dismissal. In discussing whether the Plaintiff was
entitled to a voluntary nonsuit, the trial court referred to the Wolfe case as “factually”
distinguishable, stating that in Wolfe, the trial court had not confirmed the decision of the
jury of view, while “[i]n this case the jury of view reported on May 16, 2012, and the Court
polled the jury and confirmed the Order immediately, noting the objection of the Plaintiff.” 3
3
The trial court acknowledged the Wolfe case but said it was "not controlling but only persuasive,"
and the trial court further discounted our decision in Wolfe because it was not published, no application for
(continued...)
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(Emphasis added). Ultimately, however, the trial court found that “the fact that the Court
confirmed the jury of view finding here and had not in Wolfe [is] a distinction without a
difference.” Therefore, the court concluded that “the Plaintiff should be entitled to file his
Voluntary Dismissal at this point in these proceedings.”
As we noted earlier in this opinion, under the current statutory scheme, the jury of
view’s report may be contested by any party to the condemnation action. See Tenn. Code
Ann. § 54-14-112(a). If no objection to the report of the jury of view is filed, or if objections
are filed and heard and considered by the court, the report of the jury of view may be
confirmed by the court, or the court may set the report aside and order another writ of
inquiry, or it may modify the report and grant the easement as it deems proper. See Tenn.
Code Ann. § 54-14-112(b), -113. In Wolfe, we rejected the notion that a plaintiff had lost
his right to object to the report of the jury of view where he failed to do so within 30 days
because the statutory scheme does not provide any time frame within which objections must
be filed. 2009 WL 723529, at *6. “Where the statute prescribes no time for the taking of the
appeal from a jury of view's report, it must be taken within a reasonable time unless
circumstances indicate the intent to waive the right to appeal.” Id. (citing Officer v. E. Tenn.
Natural Gas Co., 239 S.W.2d 999, 1001 (Tenn. 1951)). Obviously, polling the jury of view
and “confirming” its report “immediately” would not permit “a reasonable time” for a
plaintiff to lodge objections to the report, unless the defendants indicate an intent to waive
their right to appeal. In any event, the record does not support a finding that the trial court
“immediately confirmed” the decision of the jury of view in this case. From our review of
the transcript, after the presiding juror announced the decision of the jury of view, the trial
judge asked each individual juror if the announced verdict represented his or her individual
decision. After this questioning, the trial judge responded, “Very well.” Counsel for the
Defendants then informed the trial judge that he intended to file a written motion raising
objections to the jury of view’s decision. There was no consideration of Defendants’
arguments by the trial court at that time, and the judge never announced that he was
“confirming,” or approving, or adopting, the report of the jury of view. More importantly,
there is no order in the record before us that approves, adopts, or confirms the report. It is
well-settled that a court speaks through its orders and judgments. Morgan Keegan & Co.,
Inc. v. Smythe, 401 S.W.3d 595, 608 (Tenn. 2013). Thus, despite the trial court’s later
characterization of its action as having “immediately” confirmed the report of the jury of
view, there is simply no order in the record confirming the report of the jury of view, as
contemplated by Tennessee Code Annotated section 54-14-112 or -113, that would
3
(...continued)
permission to appeal was filed, it was "decided by a panel in another geographical portion of the state," and
the trial court was "not totally satisfied as to the decision of the Wolfe Court." Nevertheless, the trial court
ultimately decided to follow the holding of Wolfe because it was “very nearly on point and very recent.”
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extinguish Plaintiff’s right to a voluntary dismissal. See Wolfe, 2009 WL 723529, at *6 (“the
plaintiff's right to a voluntary nonsuit is extinguished upon an order of the court depriving
the property owner of the free and complete use of his property.”)
Finally, we note Defendants’ argument on appeal that allowing Plaintiff to take a
nonsuit after significant litigation has occurred, including several days of trial before a jury
of view, creates an extreme injustice for the Defendants and “is unjust as a matter of public
policy.” We are not unmindful of the Defendants’ situation. However, Rule 41.01
specifically provides that, with certain limited exceptions, “the plaintiff shall have the right
to take a voluntary nonsuit to dismiss an action without prejudice . . . at any time before the
trial of a cause . . . or by an oral notice of dismissal made in open court during the trial of a
cause; or in jury trials at any time before the jury retires to consider its verdict and prior to
the ruling of the court sustaining a motion for a directed verdict.” Thus, the Rule
contemplates that a voluntary dismissal may be taken late in the proceedings, when both
parties have expended significant time and expense. As our Supreme Court explained in
Lacy v. Cox, 152 S.W.3d 480, 484 (Tenn. 2004):
A plaintiff's right to voluntary dismissal without prejudice is subject to the
exceptions expressly stated in Rule 41.01(1) as well as to an implied exception
which prohibits nonsuit when it would deprive the defendant of some vested
right. Anderson v. Smith, 521 S.W.2d 787, 790 (Tenn. 1975). A plaintiff is
further limited to taking no more than two nonsuits without prejudice, Tenn.
R. Civ. P. 41.01(2), and nonsuit cannot be taken more than one year after an
initial dismissal. As long as none of these exceptions and limitations serve to
restrict dismissal, Rule 41.01(1) affords a plaintiff the free and unrestricted
right to voluntary dismissal without prejudice before the jury retires. Rickets
v. Sexton, 533 S.W.2d 293, 294 (Tenn. 1976); Stewart v. Univ. of Tenn., 519
S.W.2d 591, 592 (Tenn. 1974); see Lawrence A. Pivnick, Tenn. Circuit Court
Practice, § 23:1, at 834–35 (2003). In such instance, “The lawyer for the
plaintiff is the sole judge of the matter and the trial court has no control over
it.” Rickets, 533 S.W.2d at 294. A pro forma order must be entered by the
trial court for ministerial and procedural purposes. Tenn. R. Civ. P. 41.01(3).
(Footnotes omitted). Because Defendants have not shown that any of the exceptions to Rule
41.01 were applicable, or that they were deprived of a vested right obtained during the
proceedings, we find that Plaintiff was entitled to a voluntary nonsuit. All other issues are
deemed pretermitted.
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V. C ONCLUSION
For the following reasons, we affirm the trial court’s decision to deny the Defendants’
motion to set aside the order of voluntary dismissal. Costs of this appeal are taxed to the
appellants, Peggy J. Lowe, Barry L. Lowe, Carol Lowe, Mark Curtis Lowe, and Donna Lynn
Lowe, and their surety, for which execution may issue if necessary.
_________________________________
ALAN E. HIGHERS, P.J., W.S.
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