City of Memphis v. Tandy J. Gilliland Family, L.L.C.
| Decision Date | 29 August 2012 |
| Docket Number | No. W2011–01611–COA–R3–CV.,W2011–01611–COA–R3–CV. |
| Parties | CITY OF MEMPHIS, A Municipal Corporation for the Use and Benefit of Memphis Light Gas and Water v. TANDY J. GILLILAND FAMILY, L.L.C., et al. |
| Court | Tennessee Court of Appeals |
OPINION TEXT STARTS HERE
Denied by Supreme Court
Jan. 14, 2013.
Randall D. Noel, John C. Henegan, Elizabeth E. Chance, and Charlotte Knight Griffin, Memphis, Tennessee, and Norman P. Hagemeyer, Ellendale, Tennessee, for the appellants, City of Memphis, A Municipal Corporation for the Use and Benefit of Memphis Light, Gas & Water Division.
Robert A. McLean and Allison Kay Moody, Memphis, Tennessee, for the appellees, Tandy J. Gilliland Family, L.L.C., Tandy Jones Gilliland, Trustee, Tandy J. Gilliland and Rudolph Jones, Jr., L.L.C., and Regina Morrison Newman, Shelby County Trustee.
J. STEVEN STAFFORD, J., delivered the opinion of the Court, in which ALAN E. HIGHERS, P.J., W.S., and HOLLY M. KIRBY, J., joined.
This is a condemnation case. The trial court granted summary judgment in favor of Appellees, the landowners, finding that Appellant MLGW's attempted condemnation was not necessary. The evidence clearly establishes that MLGW had the right to take, and that the taking was for a public purpose. Therefore, the burden fell to Appellees to show that MLGW's taking was arbitrary or capricious. The evidence contained in the record does not establish that the taking was arbitrary or capricious with the result being that the condemnation is “conclusive upon the court.” Because the court considered necessity and location in contravention of MLGW's condemnation power, we reverse the grant of summary judgment and remand to the trial court.
This case involves the attempted condemnation of three parcels of land by Appellant The City of Memphis, for the use and benefit of Memphis Light, Gas and Water Division (“MLGW”). These parcels are currently owned by Tandy J. Gilliland Family, L.L.C., Tandy J. Gilliland and Rudolph Jones, Jr., L.L.C., and Tandy Jones Gilliland, Trustee of Callis Brunswick Trust (together “Appellees”). The disputed parcels comprise the northwest and northeast corners of the Canada Road and Highway 70 intersection (the “Intersection”), and have been owned by Appellees, or affiliated entities, for over one hundred years.
Since the 1950s, MLGW has had easements for its utility poles and lines on the Appellees' property at this Intersection. MLGW's easements have always been separate from any right-of-way held by the Tennessee Department of Transportation (“TDOT”). However, in the fall of 2008, Appellees entered into a period of negotiation with TDOT concerning the State of Tennessee's plan to install a traffic signal at the Intersection. Specifically, the parties discussed expanding TDOT's existing right-of-way at the Intersection to eighty feet north of the center line of Highway 70. The expansion was to accommodate the widening of Highway 70 beyond its then-existing four lanes. On or about March 30, 2009, Appellees deeded TDOT eighty feet of property as a right-of-way for the expansion of the Intersection and for the installation of a traffic signal. The expanded right-of-way encompassed MLGW's existing easements. Appellees contend that, in their negotiations, TDOT represented that utility providers, such as MLGW, who possessed existing easements, would be compensated for their respective easements and would be granted the right to relocate within the expanded right-of-way. However, the warranty deed, under which Appellees granted the right-of-way to TDOT does not reflect any agreement between Appellees and TDOT that MLGW's poles and facilities would be relocated within TDOT's right-of-way.
TDOT began construction at the Intersection. However, around October 2009, construction came to a halt when MLGW refused to move its poles into TDOT's expanded right-of-way. On October 29, 2009, TDOT requested that MLGW move its poles into the expanded right-of-way so that construction could resume; however, MLGW refused to comply, and filed suit.
On January 28, 2010, MLGW filed three lawsuits, one against each of the three Appellees, seeking to condemn a portion of Appellees' properties to create easements for its utility poles. Approximately one year later, on January 12, 2011, the three lawsuits were consolidated and MLGW filed an amended petition for condemnation against the Appellees. By its petition, MLGW sought to condemn an eight-foot-wide easement across each of Appellees' respective parcels to allow its utility facilities to be moved outside the expanded TDOT right-of-way, as the situation had been since the 1950s. MLGW specifically sought condemnation to “construct, maintain, improve or alter its transmission line” on portions of the three properties owned by Appellees. MLGW also filed for a temporary, construction easement over a fifteen-foot portion of each of the properties. For each of the three properties, MLGW deposited funds with the court constituting the fair payment for both the permanent and construction easements. The amended petition for condemnation also sought to allow telecommunications and CATV carriers to continue their right to be attached to and to operate and maintain their respective lines on MLGW's utility poles.
On February 14, 2011, Appellees filed a motion to dismiss the amended petition for condemnation. In support of the motion, Appellees filed a statement of undisputed facts, along with the affidavit of the custodian of records for the City of Lakeland. MLGW responded to Appellees' proposed facts and, additionally, filed its own statement of facts in opposition to the motion to dismiss. Appellees responded to MLGW's statement of facts by submitting additional material facts and the deposition of William Goss, Shelby County's Real Estate Manager and a retired MLGW employee. MLGW filed its response to Appellees' additional facts and the case proceeded to hearing on the pending motions.
On June 10, 2011, the trial court heard arguments on Appellees' motion to dismiss the amended petition and MLGW's motion for condemnation, appropriation, and possession. We note that the trial court considered matters outside the pleadings at this hearing. Rule 12.02 of the Tennessee Rules of Civil Procedure provides that if “matters outside the pleadings are presented to and not excluded by the court,” then a motion to dismiss shall be treated as a motion for summary judgment. Tenn. R. Civ. P. 12.02 (2011); see also Jones v. Vasu, 326 S.W.3d 577, 580 (Tenn.Ct.App.2010). Accordingly, Appellees' motion to dismiss was treated as one for summary judgment in the trial court.
During the hearing, MLGW attempted to establish that there was a distinct and concrete need for its new easement because its poles and lines had to be moved from their existing location for the expansion of the Intersection. MLGW argued, that, by obtaining its own easement, MLGW and its rate-payers would be protected from the increased expense of moving its facilities a second time if and when TDOT expanded Highway 70 again in the future. Appellees argued that MLGW's condemnation was inappropriate because Appellees had given property to TDOT for a right-of-way. Appellees alleged that it would be a better plan to place MLGW's poles within TDOT's expanded right-of-way, and that, consequently, it was not necessary for MLGW to have its own, separate easement. Appellees also argued that MLGW was exceeding its eminent domain power under the Tennessee Code by seeking permission for third parties (i.e., telecommunications and CATV providers) to continue to attach to MLGW's poles within the requested easement. MLGW argued that allowing telecommunications and CATV carriers to attach to its poles, once the poles were set up in the new easement, did not exceed MLGW's condemnation authority and did not change the “public use” of its utility poles to a private use.1 MLGW also submitted plans, showing that both MLGW and TDOT had always contemplated that MLGW would obtain its own easement outside of TDOT's right-of-way. One sketch, marked “approved” by TDOT in June 2009 (which was approximately two months after Appellees granted the extended right-of-way to TDOT) shows MLGW's proposed utility easement outside TDOT's right-of-way. MLGW further cited to the Utility Relocation Contract between TDOT and MLGW, which expressly states MLGW's intention, allegedly known to TDOT, to obtain its own utility easement outside of TDOT's right-of-way. Moreover, MLGW argued that, because it was to obtain its own easement independentof TDOT's, it had agreed to transfer its existing easement, now within TDOT's expanded right-of-way, to TDOT.
On July 1, 2011, the trial court entered an order, granting Appellees' motion to dismiss (now converted to a motion for summary judgment). The court attached a transcript of its ruling from the bench to its July 1 order. In relevant part, the trial court noted two grounds raised by Appellees to avoid condemnation: (1) that the relief sought exceeded MLGW's authority because it sought to allow “private” common carriers to access its poles; and (2) MLGW failed to show a “necessary” purpose for the condemnation. The court ruled that a public purpose for the condemnation was shown, even if telecommunications and CATV carriers were permitted to attach to MLGW's poles. The court then opined that the second step in its analysis was to determine if MLGW's taking was “necessary and essential.” The trial court ultimately concluded that the taking was not necessary and essential. MLGW argues that, in reaching its conclusion, the trial court improperly substituted its judgment for that of MLGW by making a “general finding that showed a fundamental misapprehension of MLGW's existing easement and what [Appellees] could properly convey to TDOT.” In support of its argument, MLGW...
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City of Memphis v. Tandy J. Gilliland Family LLC
...is the second appeal of this eminent domain case. In the first appeal, City of Memphis v. Tandy J. Gilliland Family, LLC, et al., 391 S.W.3d 60 (2012), this Court held that Appellee City of Memphis, a municipal corporation for the use and benefit of Memphis Light, Gas, and Water Division, w......