Tarpley v. Hornyak

• Decision Date: 15 March 2004
• Citation: 174 S.W.3d 736
• Parties: Ernest TARPLEY, et al. v. Bert M. HORNYAK, et al.
• Court: Tennessee Supreme Court

Page 736

174 S.W.3d 736

Ernest TARPLEY, et al. v. Bert M. HORNYAK, et al.

Court of Appeals of Tennessee, at Nashville.

July 7, 2003 Session.

March 15, 2004.

Published Pursuant to Tenn. Ct. R. 11.

Justin D. Pitt, Lebanon, Tennessee, for the appellants, Bert M. Hornyak and wife, Dorothy E. Hornyak.

Henry Clay Barry, Lebanon, Tennessee, for the appellees, Ernest Tarpley and wife, Mary Nell Tarpley.

OPINION

PATRICIA J. COTTRELL, J., delivered the opinion of the court, in which WILLIAM C. KOCH, JR., and WILLIAM B. CAIN, JJ., joined.

Landowners sued to abate a nuisance claiming that a concrete causeway, built over a creek by an adjoining landowner, caused water to flood their property. After hearing from one witness, the trial judge discouraged further proof and instead chose to visit the plaintiffs' land at the next flooding. He subsequently found the causeway to be a nuisance and ordered it removed. We reverse because trial court based its decision solely on its personal observations.

I. THE FACTS

This dispute involves a structure variously described in the pleadings as a bridge, a concrete causeway, and a crossover, built by Wilson County landowners Bert and Dorothy Hornyak. Their upstream neighbors, Ernest and Mary Nell Tarpley, claimed that the drainage culverts under the structure were inadequate to carry the volume of water flowing down the creek in wet and rainy times, causing the Tarpleys' fields to flood and become marshy and uncultivatable.

The Tarpleys filed a Complaint to Abate Nuisance in the Chancery Court of Wilson County alleging that because of its faulty construction, the bridge essentially functioned as a dam for creek waters. The plaintiffs asked the court to order the structure removed, to order the Hornyaks to remove rocks and materials they allegedly deposited on the Tarpleys' land during the construction of the causeway, and to award them a judgment of up to $10,000 for the damages they allegedly suffered because of flooding.

The Hornyaks filed an Answer, admitting they had constructed a concrete bridge, but denying that they had created a nuisance or that they had deposited materials on the plaintiffs' land. In an amended answer, they alleged that they had merely resurfaced a long-existing crossover.

A trial was begun. The record does not contain a transcript of the trial, or of any other proceedings in this case, except for a one-page transcript of the hearing on the Motion for New Trial. Thus, the only evidence in the record of what went on during any other proceedings are two Statements of the Evidence filed by the parties. Neither Statement of the Evidence was explicitly approved by the trial court, see Tenn. R.App. P. 24(e), but they complement rather than contradict each other and are consistent with the trial court's written orders. The following account is derived from both statements.

The attorneys for both parties presented their opening statements, after which Ernest Tarpley was called to the stand. He testified on direct that the causeway caused flooding on his property during times of heavy rain, and that his hay crop had been damaged by the flooding. On cross-examination, the Hornyaks' attorney asked Mr. Tarpley what evidence existed to prove his alleged damages, other than his own testimony. During this line of questioning, the chancellor interrupted, telling the attorneys he wanted them in his chambers. He then ordered a recess.

According to the plaintiffs' Statement of the Evidence only (the defendants' statement concluded with the declaration of the recess), the judge announced in chambers that he would be happy for the parties to put on all the proof they wanted, but that from their opening statements, it appeared they were going to testify in direct contradiction to each other on the question of whether the bridge caused flooding. The judge reasoned that a continuance of the case would not cause either party any harm, and declared that he did not want to make a decision until he or the Clerk and Master had the opportunity to witness the flooding in person. He accordingly instructed the plaintiffs' attorney to contact the Clerk and Master when and if flooding occurred again, at which time one of them would proceed to the site. The court's ruling was memorialized in a July 5, 2001 order, which states:

It appears that the Court is not in a position to determine the validity of the Complaint filed herein. The Court must determine whether or not the nuisance complained of, to wit, that water flows over the bank onto Plaintiff's property as a result of a certain crossover constructed by Defendant.

Therefore, this Court reserves judgment until sufficient proof has been offered by the Plaintiff. Therefore, this matter shall be and is hereby continued until the Court or the Clerk and Master has an opportunity to witness the flow of water.

All other matters are reserved.

Eight months after the trial began, the Tarpleys reported an incident of flooding following heavy rains the night before. Their attorney notified the Clerk and Master of the flooding. After conferring with the Chancellor, the Clerk and Master called the attorneys for both parties and announced that the Chancellor was going to witness the event, with both parties and their attorneys welcome to attend. At the time, the Hornyaks were in Florida. Their attorney stated that he had a conflict and would be unable to appear, but he had no objection to the matter proceeding without him. He also notified Dee Hutchison, the Hornyaks' adult daughter.

The Clerk and Master and the Chancellor drove to the site, as did the Tarpleys' attorney. Ernest Tarpley and Dee Hutchison were also present. The Chancellor spent about half an hour viewing the creek and the flooding which was occurring in the fields adjoining the creek. According to the affidavit of Dee Hutchison, the Chancellor also talked to Ernest Tarpley and his attorney about the flow of water on the property. The Chancellor then returned to the Wilson County Courthouse.

The Chancellor subsequently placed a three-way call between himself and the two attorneys, in which he announced his judgment. He said that he saw the water backed up by the obstruction, and that as a result the plaintiffs' fields were being flooded, with the flooding extending into the fields of the defendants as well. He declared that the bridge was a nuisance, ordered its removal, and stated that he would hold all other matters in abeyance pending a party setting a hearing on the issue of damages and attorney fees. The court's subsequently entered written judgment stated:

Both parties appeared in person and represented by counsel, whereupon it appeared to the Court that the issue in this common law nuisance suit was whether or not the concrete bridge with culverts, which the Defendants had built across a stream caused their neighbors, the Plaintiffs, who own the property immediately upstream from the bridge, to flood, if so, the bridge represents a nuisance. If not, then it does not. The Plaintiff testified that the bridge caused his property to flood and the Defendant denied the same. Therefore, the Court reasoned that it should continue the case, until the next substantial rain, so that this Court or the Clerk and Master could have an opportunity to witness the flow of the water, and determine whether or not the same flooded the Plaintiffs property.

Thereafter, the Court received a phone call asking it to come and view the stream. The Court traveled to Statesville and viewed the stream, whereupon it appeared to the Court that the bridge did in fact, back up the waters and caused the Plaintiffs', as well as the Defendants', property to flood. It therefore appeared to the Court that the bridge did, in fact, represent a common law nuisance.

The defendants filed a Motion for New Trial, which was heard on May 9, 2002. The one page-transcript shows that the Hornyaks' new attorney objected to the fact that neither the defendants nor their attorney were present during the viewing of the creek, that there were private communications between the judge and the plaintiff at that time, and that the Hornyaks were not given the opportunity to present a defense. The trial court denied the motion for a new trial. This appeal followed.

II. ISSUE ON APPEAL

The standard of review on appeal is well-settled. We review the trial court's findings de novo, with a presumption of the correctness of the factual findings of the trial court, unless the evidence preponderates otherwise. Tenn. R.App. P. 13(d); Bogan v. Bogan, 60 S.W.3d 721, 727 (Tenn.2001).

The trial court found, after its view or inspection of the property, "it appeared to the court that the bridge did in fact back up the waters and caused the ... property to flood." The record clearly shows that the trial court reached its conclusions on the basis of its personal observation of the property.¹ Because it is impossible for us to review what the trial judge saw, this court cannot perform its duty to review any facts gleaned during the view and any findings based thereon under Tenn. R.App. P. 13.

In most situations, the inadequacy of an appellate record will be attributed to the appellant, whose responsibility it is to prepare a record that is adequate for a meaningful appellate review. Tenn. R.App. P. 24(b); State v. Bunch, 646 S.W.2d 158, 160 (Tenn.1983); McDonald v. Onoh, 772 S.W.2d 913, 914 (Tenn.Ct.App.1989). The result is generally that where factual issues are raised, without an appellate record containing the facts, this court cannot perform a de novo review or determine the preponderance of the evidence. Sherrod v. Wix, 849 S.W.2d 780, 783 (Tenn.Ct.App.1992). Therefore, in such cases, we usually assume that the record, had it been preserved, would have contained sufficient evidence to support the trial court's factual findings. Id.; McDonald, 772 S.W.2d at 914; Gotten v. Gotten, 748 S.W.2d 430, 432 (Tenn.Ct.App.1988); Irvin v....