Anderson v. Smith

• Citation: 521 S.W.2d 787
• Parties: W. R. ANDERSON et al., Appellants, v. Robert F. SMITH, Commissioner of the Department of Transportation of the State of Tennessee, Appellee.
• Decision Date: 10 March 1975
• Court: Supreme Court of Tennessee

Page 787

521 S.W.2d 787

W. R. ANDERSON et al., Appellants, v. Robert F. SMITH, Commissioner of the Department of Transportation of the State of Tennessee, Appellee.

Supreme Court of Tennessee.

March 10, 1975.

Walter L. Price, Bryant, Price, Brandt & Jordan, Johnson City, for appellants.

Milton P. Rice, Atty. Gen. and Reporter, Russell G. Lazenby, Asst. Atty. Gen., Nashville, Olan G. Haynes (Sp. Trial Counsel), Hicks, Arnold & Haynes, Johnson City, for appellee.

OPINION

COOPER, Justice.

This appeal is from an order entered in the Circuit Court of Washington County permitting the State of Tennessee to take a voluntary nonsuit in a condemnation action.

Robert F. Smith, Commissioner of the Department of Transportation of the State of Tennessee, filed a petition seeking to condemn the property of the appellants for highway purposes under T.C.A. Sections 23--1528 et seq. Simultaneously with the filing of the petition for condemnation, appellee deposited $22,925.00 as the amount of damages estimated to be due appellants as provided by T.C.A. Section 23--1529. Appellee also served notice that he would seek an order of immediate possession.

Appellants withdrew the funds deposited with the petitioner by the clerk and filed an answer in which they admitted that appellee had the right to condemn and to take immediate possession of the property, putting in issue only the amount of compensation to be paid by appellee for the land condemned.

On August 23, 1972, on application of appellee, the trial court entered an order granting to appellee immediate possession of the property condemned and authorizing the clerk to issue a Writ of Possession for the enforcement of the order, if necessary.

Nine months later, on May 23, 1973, appellee filed a motion seeking permission to abandon the condemnation action and asking the court to require appellants to repay into court the deposit withdrawn by them, less damages as provided in T.C.A. Section 23--1539(2).

Appellants opposed the motion, contending that 'no abandonment or non-suit may be taken under the laws of this state after possession has been taken under proper order of the court unexpected to and unappealed from.'

The trial court sustained the motion, entered an order of nonsuit, and ordered appellants to repay the deposit withdrawn by them less attorney fees of $630.00 incurred by appellants in the condemnation action. This appeal resulted.

The State of Tennessee and its agencies are given the option of condemning property under the procedure set forth in T.C.A. § 23--1401 et seq., which provides for a jury of view to fix the compensation due the landowner before possession can be decreed to the condemner, or under Sections 23--1526 et seq., which provides that the condemner shall determine the amount of compensation due the property owner and deposit the amount in court at the time of filing the petition, after which possession can be decreed to the condemner.

T.C.A. § 23--1539, which is applicable to condemnation proceedings whether instituted under T.C.A. § 23--1401 et seq. or T.C.A. § 23--1526 et seq., provides that:

'The state court having jurisdiction of a proceeding initiated by any person, agency, or other entity to acquire real property by condemnation shall award the owner of any right, or title to, or interest in, such real property such sum as will in the opinion of the court reimburse such owner for his reasonable costs, disbursements, and expenses, including reasonable attorney, appraisal and engineering fees, actually incurred because of condemnation proceedings, if:

(1) the final judgment is that the acquiring party cannot acquire the real property by condemnation; or

(2) the proceeding is abandoned by the acquiring party.'

The main thrust of the legislative action is directed to compensating landowners for attorney fees and expenses actually incurred in preparation for trial of a condemnation action later abandoned by the condemner. There is nothing in this code section to indicate a legislative intent to define the conditions for exercising the right of abandonment by the condemner, nor the stage in the proceedings when the condemner can take a nonsuit as a matter of right.

The several cases in which this court has been called upon to determine whether a nonsuit was properly granted have been in suits brought under T.C.A. § 23--1401, but principles there established are applicable to condemnation actions brought under T.C.A. § 23--1526.

In one such case, williams v. McMinn County, 209 Tenn. 236, 352 S.W.2d 430 (1961), this court held that T.C.A. § 20--1311 and T.C.A. § 20--1313, which dealt with nonsuits and dismissals in jury and nonjury trials, applied to proceedings to condemn property for public use. See also Huff v. Department of Highways, 3 Tenn.App. 277 (1926); Ragland v. Davidson County Board of Education, 203 Tenn. 317, 312 S.W.2d 855 (1958).

T.C.A. Sections 20--1311 and 20--1313, which were repealed on passage of the Tennessee Rules of Civil Procedure, formed the predicate for Rule 41.01. See Committee Comment to the Rule. Rule 41.01 grants the plaintiff the Right 'to take a voluntary nonsuit or to dismiss an action without prejudice by filing a written notice of dismissal at any time before the trial of the 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,' except when a motion for summary judgment made by an adverse party is pending. And where a summary judgment is pending, the right to a nonsuit rests in the sound discretion of the trial judge. Stewart v University of Tennessee, 519 S.W.2d 591, Tenn.1974. Though not stated in the rule, the right of plaintiff to a nonsuit is subject to the further restriction that the granting of the nonsuit will not deprive the defendant of some right that became vested during the pendency of the case. Cf. Williams v. McMinn County, Supra; Brackin v. McGannon, 137 Tenn. 207, 192 S.W. 922 (1916); Huggins v. Nichols, 59 Tenn.App. 326, 440 S.W.2d 618 (1968).

A landmark case in this state dealing with the question of what state of the proceeding the condemner can or cannot take a voluntary nonsuit is Cunningham v. Memphis Railroad Terminal Company, 126 Tenn. 343, 149 S.W. 103. Although this case was decided in 1912, it has consistently been followed in later cases. (City of Nashville v. Dad's Auto Accessories, Inc., 154 Tenn. 194, 285 S.W. 52 (1925); Department of Highways & Public Works v. Gamble, et al., 18 Tenn.App. 95, 73 S.W.2d 175 (1934); Huff v. Department of Highways, 3 Tenn.App. 277 (1926)) The Cunningham case, Supra, points up three separate stages of a condemnation suit brought under T.C.A. § 23--1401 et seq.,...