Metropolitan Development and Housing Agency v. Hill
| Decision Date | 26 July 1974 |
| Court | Tennessee Court of Appeals |
| Parties | METROPOLITAN DEVELOPMENT AND HOUSING AGENCY, Petitioner-Appellant, v. H. G. HILL, Jr., and Third National Bank, Co-Trustees, Respondents-Appellees, Southern Finishers, Inc., Respondent-Appellant. |
Harry G. Nichol, Nashville, for petitioner-appellant.
Vaden M. Lackey, Jr., Nashville, for respondent-appellant, Southern Finishers.
Walter C. Leaver, Jr., Nashville, for respondents-appellees.
The petitioner-condemnor, The Nashville Housing Authority, whose name has now been changed to 'Metropolitan Housing and Development Agency,' has appealed from a non-jury judgment awarding to respondents-owners, Horace G. Hill, Jr., and Third National Bank, Co-Trustees, the sum of $61,458.00 plus interest of $14,193.44 for the taking of respondent's property by eminent domain.
The other respondent, Southern Finishers, Inc., former tenant on the condemned premises, was awarded damages for moving expenses in a former trial, and was denied further damages in the present judgment. Said respondent has appealed.
A previous non-jury judgment in this cause reached this Court by appeal, resulting in a reversal and remand for retrial. The opinion in said appeal is reported as The Nashville Housing Authority v. Horace G. Hill et al., Tenn.App., 497 S.W.2d 917 (1973).
The respondents, Hill and Bank, Trustees, have moved to dismiss the present appeal of Southern Finishers, Inc., on the ground that the rights of Southern Finishers, Inc., were fully adjudicated upon the former appeal.
The four assignments of error of Southern Finishers, lessee, all relate to so-called 'irremovable personalty' which was left on the condemned premises by the lessee, for which lessee claims compensation, and for which lessee was denied compensation by the latest judgment of the Trial Court.
In the former judgment the Trial Court awarded Southern Finishers $50,000.00 as the fair market value of its leasehold interest. The judgment did not mention 'irremovable personalty.' In the former appeal, both petitioner and respondents, Hill and Bank, Trustees, complained that the $50,000.00 award to Southern Finishers was unjustified. From the former opinion of this Court it is amply evident that the right of occupancy of Southern Finishers, Inc., had terminated prior to the condemnation and that the only bases of lessee's claim against the condemnor were (a) cost of removal of certain machinery and fixtures, and (b) value of machinery and fixtures left on the premises. This Court allowed moving expenses, but denied any recovery for 'leasehold interest,' stating:
'(1) It is to be observed that Southern Finishers, Inc., introduced no proof whatever as to the value of their 'right of occupancy.' In other words, they claimed no value in place for a continued use of the abandoned trade fixtures. It would seem that the significance of the failure to renew their lease for an unexpired time lies in the fact that at the time of taking by condemnation they were not in position to claim damages for the loss of their lease.
'It appears beyond question that Southern Finishers, Inc., deliberately chose to leave a large part of the equipment and fixtures that were in the building and made no attempt to move many of those that Mr. Fletcher said were not attached to the realty. And, while there is some evidence as to which were 'irremovable,' such evidence is very unsatisfactory when applied to the question whether or not these fixtures became or were a part of the building so as to be regarded as realty and, to what extent, if any, they added to the value of the real estate.
'(3) It would seem that, the extent to which the machinery and equipment was so attached to the real estate as to become a part thereof because of its physical connection with the real estate or because of the intention of the parties, its value would become recoverable by the owners and not the lessee.
497 S.W.2d, pp. 922, 925, 926.
The disposition of the former appeal by this Court fully disposed of the rights of Southern Finishers, Inc., as follows:
1. Allowed $20,680.16 to Southern Finishers as moving expenses.
2. Disallowed any claim of Southern Finishers for right of continued occupancy.
3. Disallowed any claim of Southern Finishers for trade fixtures left on the premises.
The cause was remanded for other purposes including the ascertainment of the value, if any, To the owners (not the lessees) of any trade fixtures remaining attached to the realty.
In this view of the record, the rights of Southern Finishers, Inc., were fully determined upon the former appeal, and no issue in regard to Southern Finishers was left for disposition on remand. Therefore, no further proceedings were in order from which Southern Finishers could appeal, and its appeal should be dismissed.
Southern Finishers, Inc., has filed no response to the motion to dismiss, and its assignments of error, brief and argument disclose no reasons why the motion should not be allowed. The brief of this appellant cites authorities from other states to the effect that the condemning authority must pay for trade fixtures of a tenant in possession; but this Court has already decided upon the former appeal that, under the circumstances of the present case, the tenant under an expired lease cannot recover for fixtures left on the premises. That determination has been affirmed by the Supreme Court and has become final. It is no longer open for re-argument or review.
The motion to dismiss the appeal of Southern Finishers, Inc., is sustained; and said appeal is dismissed at the cost of that appellant.
The appellees, Hill and Bank, Trustees, have also moved this Court to dismiss the appeal of the condemnor on the ground that, following the rendition of final judgment in the Trial Court, and prior to prayer for or allowance of appeal, the condemnor voluntarily paid the amount of the judgment.
In this respect, the record discloses that:
On August 7, 1973, the cause was heard.
On August 30, 1973, a final judgment was entered, awarding appellees $61,458.00 as value of land and improvements and $14,193.44 as interest to final judgment, making a total of $75,651.44.
On August 30, 1973, the condemnor filed a motion for appeal.
On September 7, 1973, an order was entered allowing the appeal of condemnor.
On September 7, 1973, condemnor filed its appeal bond.
The records of the Clerk show the following:
"RECEIPTS:
----------
August 25, 1969, payment into court ..................... $62,890.00
May 11, 1970, payment into Court ........................ 13,710.00
September 7, 1973, payment into Court ................... 16,489.57
Interest accrued while in savings account ............... 6,559.15
------------
Total Receipts by Clerk ................................. $99,648.72.
DISBURSEMENTS:
--------------
To Southern Finishers, Inc., for judgment and interest .. 23,937.28
Taxes a lien per Clerk's report ......................... 644.68
So H. G. Hill, Jr., et al, Trustees, for judgment and
--
interest .............................................. 75,006.76
------------
Total disbursements by Clerk ............................ $99,588.72.
Cash on hand .................................................... 60.00."
It will be noted from the above that the bulk of the funds necessary to pay the final judgment were in the hands of the Clerk prior to the trial and judgment, and that the final payment ($16,489.57) was made to the Clerk on Sept. 7, 1973, subsequent to the motion for appeal and on the same date as the order allowing appeal and the filing of appeal bond.
Other documents showing the date of disbursement to appellees and copies of receipts issued by the Clerk to condemnor, were attached to one of condemnor's motions filed in this Court, but were not properly certified to this Court as part of the record, hence cannot be considered on appeal.
On September 13, 1973, condemnor filed the following motion in the Trial Court:
'The petitioner, Metropolitan Development and Housing Agency, moves the Court for an order requiring defendants, H. G. Hill, Jr., et al., Trustees, to file with the Clerk a supplemental agreement to repay any surplus funds, as provided by Code Section 23--1526, which provides:
...
To continue reading
Request your trial
-
Selitsch v. Selitsch
...(Tenn.1985). In fact, the cases clearly hold that a mistake of law is not a basis for Rule 60.02 relief. Metropolitan Dev. & Hous. Agency v. Hill, 518 S.W.2d 754, 768 (Tenn.App.1974).Spruce, 2 S.W.3d at 195.7 To the extent Husband argues that he is entitled to relief because he was mistaken......
-
McGill v. Idaho Bank & Trust Co.
...full knowledge of the relevant facts. Brady Township v. Ashley, 17 Pa.Cmwlth. 226, 331 A.2d 585 (1975); Metropolitan Development & Housing Agency v. Hill, 518 S.W.2d 754 (Tenn.App.1974). See generally, 27 Am.Jur.2d, Equity §§ 36, 37 (1966). Although the modern trend of authority recognizes ......
-
Lyon v. Ford Motor Co.
...he was unable to post such a bond, or his payment of the judgment is deemed voluntary. See also Metropolitan Development & Housing Agency v. Hill, 518 S.W.2d 754, 760-66 (Tenn.App.1974). [¶ 9] A minority of courts have expressed a view similar to the one taken by this Court in Workman, Fisk......
-
Pruitt v. Pruitt, W2018-00453-COA-R3-CV
...1985). In fact, the cases clearly hold that a mistake of law is not a basis for Rule 60.02 relief. Metropolitan Dev. & Hous. Agency v. Hill, 518 S.W.2d 754, 768 (Tenn. App. 1974).Spruce, 2 S.W.3d at 194-95; see also Haas, 1998 WL 599529, at *4 ("From the record, it is evident that Father wa......