Opinion
No. M2004-02780-COA-R3-CV.
January 10, 2006 Session.
Filed April 25, 2006.
Appeal from the Chancery Court for Montgomery County; No. 89-62-323; John H. Gasaway, III, Judge.
Judgment of the Chancery Court Affirmed.
John L. Mitchell and Christopher J. Pittman, Clarksville, Tennessee, for the Appellants, William B. Shearron and Sandra Shearron.
James D. Kay, Jr. and Jeanette A. White, Nashville, Tennessee, for the appellees, The Tucker Corporation and Richard Tucker, Individually.
William B. Cain, J., delivered the opinion of the court, in which William C. Koch, Jr., P.J., M.S., and Patricia Cottrell, J., joined.
OPINION
This appeal represents the second appeal as of right brought in litigation begun 17 years ago, when the plaintiffs filed suit alleging that the defendant corporation had caused flooding on their land. This Court affirmed the permanent nuisance finding in its opinion in Shearron v. Tucker, M2000-00624-COA-R3-CV, 2001 WL 1158897 (Oct.2, 2001); we held that the facts supported an action for temporary nuisance as well. The cause was remanded for a recalculation of the trial court's $30,000 damage award. Upon remand, the trial court found that the plaintiffs had failed to prove damages for temporary or permanent nuisance other than $975.00 in damages representing a damaged garden shed and water heater. From the actions of the trial court the Shearrons bring this second appeal. We affirm.
According to the complaint originally filed in Montgomery County Chancery Court the plaintiffs owned property in the Savannah subdivision in the City of Clarksville. The defendant developer, contrary to subdivision plans on file with the Montgomery County Clerk's office, directed ground water from the adjacent subdivision it was building onto the Shearrons' property and thereby caused substantial and continued flooding on that property over a nine-year period. The late Judge James Walton heard the cause by interchange in the Chancery Court and granted judgment in favor of the plaintiffs on theory of permanent nuisance. This Court affirmed the permanent nuisance finding. Shearron v. Tucker, M2000-00624-COA-R3-CV, 2001 WL 1158897 (Oct.2, 2001). We held that the facts supported an action for temporary nuisance as well. The cause was remanded for a recalculation of the trial court's $30,000 damage award. Judge John Gasaway heard the cause on remand and found that the plaintiffs had failed to prove damages for temporary nuisance and that the plaintiff's proof was inadequate to support the original $30,000 judgment, awarding instead $975.00 in damages representing a damaged garden shed and water heater. Though the actions that gave rise to the controversy between these parties occurred some 17 years prior to the instant appeal, our analysis of the issues herein focuses on Judge Gasaway's order on remand entered October 18, 2004. In that order, the trial court described the scope of the mandate:
This court was permitted, in its discretion, to conduct a hearing to receive additional evidence on the issue of damages. At the hearing, the Shearrons offered evidence through the testimony of Craig A. Johnson, an appraiser with G. Herbert Pritchett Associates, Inc. Tucker offered evidence through the testimony of Larry E. Metcalf, an appraiser with Larry E. Metcalf Associates.
Acknowledging that remedial work performed by the City of Clarksville had corrected the nuisance-creating flooding, the appellate court opined that a permanent nuisance existed because "the Shearrons presented unrefuted evidence that, because of Tucker's interference with the natural flow of water, excessive water flows across and underneath the Shearron land, that the open ditch and underground pipe affect the market value of Shearrons' land, and that a stigma on the property remains for some period of time even if the flooding has been alleviated." Moreover, the appellate court opined that during the period of time the flooding existed before the flooding was alleviated, the nuisance was temporary.
Regarding the measure of damages for a permanent nuisance, the appellate court further opined that "the effect on the market value of the property must be determined" to ascertain the effects of the nuisance. For the temporary nuisance caused by the flooding, the appellate court opined that" the measure of damages is `the injury to the value of the use and enjoyment of the property, which is usually shown by evidence of the extent that the rental value of the property is diminished by the nuisance' during the period of time in which the nuisance existed."
With the appellate court's opinion for guidance, the Shearrons relied upon the evidence offered through Mr. Johnson to establish their damages, while Tucker relied upon Mr. Metcalf to refute the claimed damages.
This order acknowledges that in the original trial Defendants failed to obtain expert testimony refuting Plaintiffs' expert Craig Johnson's opinion. At the time of the first trial, Mr. Johnson had not conducted one residential appraisal in Montgomery County. Despite this fact, he opined that, due to the extensive flooding caused by the defendant's actions, and despite the existence of remedial measures taken by the city and intended to remedy the flooding on the subject property, a "stigma" was on the property which affected its value. These measures included the installation of a culvert which ran the length of the Shearron's property and carried the ground water under the abutting road and through the tract on the opposite side of that road. In addition, the city installed a "bar ditch" at the rear of the Shearrons' property to direct the ground water into that culvert. At the time of the original trial the measures taken were only two years old, and the Plaintiffs argued that they were untested. Nevertheless, as a result of Mr. Johnson's testimony, the court assigned a $30,000 damage figure at the original trial.
Upon remand, the trial court heard again from Plaintiffs' expert Johnson as well as from the defense's new expert Larry Metcalf. Johnson's testimony was substantially similar to that provided in the first trial with the addition of data to support his opinion as to damage for temporary nuisance. Johnson reiterated that the diminution of value in the Shearron's property was caused by the flooding "stigma" referenced in the earlier trial. The October 2004 order provides the following summary of the additional proof of damages for permanent nuisance:
Mr. Johnson testified that the effects of the permanent nuisance on the Shearron property diminished the market value by twenty-five (25%) percent. Valuing the property at $174,000.00, Mr. Johnson opined the property loss in value was $43,500.00. Mr. Metcalf opined that the property had not diminished in value but had increased in value. In support of his contention, Mr. Metcalf cited market-value sales of other residences in the immediate area that had been affected by the flooding problem before the remedial work performed by the city. Also, the evidence established that, after the remedial work had been done, the Shearrons built an additional house on the subject property and developed a multi-million dollar condominium project with multiple units on newly-acquired property located directly across the road from the subject property, which new property had been the receiving land of the surface water produced by the flooding. The court finds that the twenty-five (25%) percent damage factor used by Mr. Johnson to be untrustworthy and arbitrary. Therefore, the Shearrons failed to meet their burden of proof. Further, the court finds that the preponderance of the evidence establishes that the subject property appreciated in value and there are no damages resulting from the permanent nuisance.
On direct examination Johnson testified that since the installation of the culvert and bar ditch, no significant flooding had occurred on the property. Nevertheless, he opined that a knowledgeable buyer in the Clarksville area would be worried about the "stigma" of flooding. He based this opinion on a price comparison between the subject property and several allegedly comparable properties in the Derby Park subdivision in Oak Grove, Kentucky. Mr. Johnson testified that the comparison was appropriate due to the remedied flooding situation in Derby Park. In 1996 over 20 homes in Derby Park experienced increased ground water as a result of heavy rains after a local farmer filled in a sinkhole that was providing drainage for the excess water. None of the houses Johnson had evaluated in his comparison had water above the crawlspace of the dwelling, but the flooding continued until the City of Oak Grove installed two injection wells to alleviate the condition. According to Johnson, "But it seemed that no matter how many reassurances people have gotten in this subdivision, potential buyers, they've still not been swayed toward this as a solving of the problem. And the market has always been soft ever since the flooding." Upon further questioning about the alleged similarity, Johnson provided the following as the basis for his opinion:
Q. All right. Tell us how that is similar, if you feel it is, to the Shearron property.
A. Well, it's not an exact comparable situation. Real estate values in the Oak Grove area aren't exactly the same as they are in the Trough Springs Road area/Sango area of Clarksville. But it's a — it's a close proximity to that area. The price points in the Oak Grove area are significantly lower than they are in the Trough Springs Road area. Value of homes are higher, maybe more than twice the value of what the houses sell for in the Oak Grove area. But the Oak Grove area caters to a different type of market, mostly to enlisted soldiers, enlisted personnel, and DOD employees at Ft. Campbell who look at these homes as entry level homes. Whereas down in the Sango area, these homes are more professional people, more upscale people who can afford a wealthier home.[ sic]
Q. And did you feel that the same market stigma attached to the Shearron property?
A. Yes, I did.
Johnson chose two homes from the Derby Park area, 151 and 157 Man-O-War Drive. According to his appraisal of these two properties pre-flooding and post-flooding, he arrived at an average 14.5% reduction. He adjusted this figure to 25 % based on his opinion of the "professionalism of the neighborhood and the higher expectance of property owners in the Sango/Trough Springs area." Throughout his testimony on direct, Mr. Johnson's only reference to any property geographically approximating that of the Shearrons is in referring to Larry Metcalf's report. He testified to his belief in a lingering doubt in the community about the remedial measures taken by the city, and various possible dangers inherent in those measures, but he could never cite specific data linking the decrease in value in Kentucky to the alleged stigma. He concluded that the property of the Shearrons had diminished by $43,000. The diminution, opinion and method applied in Johnson's appraisal were vigorously challenged on cross-examination:
Q. Okay. You testified — and correct me if I'm wrong here — that there is a, quote, "lingering doubt by the knowledgeable buyer," unquote. And I take it that that means that a knowledgeable buyer that would come in here — would have a lingering doubt about the flooding; is that right?
A. Yes, sir.
Q. And you believe that?
A. Yes, sir.
Q. All right. Have you talked to any of the buyers that have bought or sold — I guess they would be sellers if they sold. Have you talked to any buyer or seller along Savanna since 1999 as to their lingering doubts?
A. No, sir.
Q. Have you talked to anyone in Countryside since 1999 as to any of their lingering doubts?
A. No, sir.
Q. The fact that you believe a knowledgeable buyer has a lingering doubt about this flooding is your opinion and your opinion only, isn't it?
A. It's my opinion based on experience.
Q. You don't have one person once again in this county, that would fit into the knowledgeable buyer category that has a lingering doubt about Mr. Shearron's property flooding, do you?
A. Just hearsay, sir.
Upon further cross-examination, Johnson testified that the median income of homeowners in Oak Grove was approximately half that of homeowners in the Clarksville area. In addition Mr. Johnson agreed that some of the houses in Oak Grove had extensive damage in that the subfloors and drywall had to be removed after the flooding:
Q. And, I mean, people had to go in and tear out and replace?
A. They actually had to remove the drywall, the lower four feet of the drywall, and the subfloor coverings. In certain cases the subfloor itself had to be removed.
Q. And that is nothing like what Mr. Shearron experienced, was it, sir?
A. That's correct.
Q. You note here in Oak Grove Kentucky that investors have come in to take advantage of the discount prices. You're not suggesting that that is going to happen to any of the homes in Savannah or Mr. Shearron's home, are you, sir?
A. No, sir it won't happen.
* * *
Q. Now, I do want to ask you about Herb Pritchett and Associates, Inc. Did in 2001. You were asked to value two homes that were damaged by the flooding. You didn't actually do that, did you, sir? Your firm did?
A. I personally conducted the research.
Q. Okay. Let's look at the next page of this report. And you found two homes at 151, 157 Man-O-War; is that correct?
A. Yes, sir.
Q. Now, that's appraised value, correct? It's not sales?
A. These are comparison of sales we conducted. I didn't document the whole appraisal process when we did those for the insurance company within this report. I just summarized and re-documented in this report what we had done back then. I had actual conversations with some of the realtors that have sold homes in that subdivision, and they told me they had to discount the houses 10,000 to 12,000 a piece just to sell them. Those were actual conversations with brokers that sold those houses in that area.
Under further cross-examination, Mr. Johnson testified that he could not point to one learned treatise or conversation with any realtor or resident in Clarksville to support his "adjustment" from 14 to 25%. These factors affect our review of the trial court's consideration of expert testimony proffered at trial. "In general, questions regarding the admissibility, qualifications, relevancy and competency of expert testimony are left to the discretion of the trial court. State v. Ballard, 855 S.W.2d 557, 562 (Tenn. 1993). The trial court's ruling in this regard may only be overturned if the discretion is arbitrarily exercised or abused." McDaniel v. CSX Transp., Inc., 955 S.W2d 257, 263-64 (Tenn. 1997). In addition to this well settled standard we recognize that:
Once the evidence is admitted, it will thereafter be tested with the crucible of vigorous cross-examination and countervailing proof. After that occurs, a defendant may, of course, challenge the sufficiency of the evidence by moving for a directed verdict at the appropriate times. See Tenn. R. Civ. P. 50. Yet it is important to emphasize that the weight to be given to stated scientific theories, and the resolution of legitimate but competing scientific views, are matters appropriately entrusted to the trier of fact. See Joiner, 78 F.3d at 534-35 (Birch, J., concurring).
McDaniel v. CSX, 955 S.W.2d at 265.
The untimely death of Judge Walton thrust upon Judge Gasaway the task of trying this case under the Order of Remand from the Court of Appeals. The posture of the case before this Court on the first appeal was review of the judgment of Judge Walton based upon unopposed expert testimony of Plaintiff's expert witness Craig Johnson. While based upon the record that was before us, this Court concluded that both a temporary nuisance and a permanent nuisance existed, the Court found that proof of damages was inadequate and certain statements in the Order of Remand presented the trial court with broad discretion as to the damages issue. The instruction on remand provided, "Therefore, to the extent that the measures taken by the city do not fully remedy the problem, we conclude that there is a permanent nuisance. . . . As to the effects of the nuisance which remain, i.e., the additional water flow across and under the Shearrons' land, the open ditch and underground pipe, and any remaining stigma attached to the property, the effect on the market value of the property must be determined. Therefore, the cause must be remanded for redetermination of the damages in light of our holding. On remand, the trial court may, in its discretion, hear additional proof on the issue of damages."
The trial court determined on remand to reopen the proof and heard expert witnesses, including Craig Johnson and the defendant's expert, Larry E. Metcalf. The trial court specifically found the testimony of Mr. Johnson to be untrustworthy and arbitrary, but that the testimony of Mr. Metcalf was "credible and reliable." On appeal in this non-jury case, Appellants face formidable obstacles. The existence of their damages and the extent of their pecuniary loss are elements of this case, and the burden of proof rests upon them to establish such elements. Jones v. Tenn. Central Rlwy. Co., 8 Tenn. App. 183 (Tenn.Ct.App. 1928). The amount of damages to be awarded is a question of fact on which appellate review is limited by Tennessee Rule of Appellate Procedure 13(d).
On the other hand, the amount of damages actually awarded, where the amount is within the limits set by law, is a question of fact. See Spence v. Allstate Ins. Co., 883 S.W.2d 586, 594 (Tenn. 1994); Reagan v. Wolsieffer, 34 Tenn.App. 537, 542, 240 S.W.2d 273, 275 (1951). In cases where the trial court is hearing the case without a jury, we review the amount of damages awarded by the trial court with the presumption that it is correct, and we will alter the amount of damages only when the trial court has adopted the wrong measure of damages or when the evidence preponderates against the amount of damages awarded. See Tenn.R.App.P. 13(d); Armstrong v. Hickman County Highway Dep't, 743 S.W.2d 189, 195 (Tenn.Ct.App. 1987).
Beaty v. McGraw, 15 S.W.3d 819, 829 (Tenn.Ct.App. 1998); see also Hall v. City of Gatlinburg, No. E2001-01470-COA-R3-CV, 2002 WL 185479 (Tenn.Ct.App. Feb. 6, 2002).
Expert testimony is advisory only in the trial court and has only such weight as the trial court chooses to give it.
The decree of a trial court granting or denying a beer permit comes to this Court accompanied by a presumption of correctness and the burden is on the appellant to show that the evidence preponderates against the judgment of the trial court. Adams v. Monroe County Quarterly Court, 214 Tenn. 270, 379 S.W.2d 769, 771 (1964); Cantrell v. DeKalb County Beer Board, 213 Tenn. 568, 376 S.W.2d 480 (1964). Having reviewed the record, we are satisfied that the evidence supports the findings and decree of the Chancellor. Appellant places great reliance upon the testimony of Sgt. Kilpatrick that in his opinion appellee's proposed business would create a traffic hazard, but, in our view, this opinion testimony — although not contradicted by an opposing contrary opinion — is not conclusive. Expert opinions, at least when dealing with highly complicated and scientific matters, are not ordinarily conclusive in the sense that they must be accepted as true on the subject of their testimony, but are purely advisory in character and the trier of facts may place whatever weight it chooses upon such testimony and may reject it, if it finds that it is inconsistent with the facts in the case or otherwise unreasonable. Even in those instances in which no opposing expert evidence is offered, the trier of facts is still bound to decide the issue upon its own fair judgment, assisted by the expert testimony. Act-O-Lane Gas Service Co. v. Hall, 35 Tenn.App. 500, 248 S.W.2d 398 (1951). In our view, this is especially true when the opinion, as in this case, amounts to no more than prediction and speculation.
Gibson v. Ferguson, 562 S.W.2d 188, 189-90 (Tenn. 1976); see also England v. Burns Stone Co., Inc., 874 S.W.2d 32, 38 (Tenn.Ct.App. 1993). (emphasis added.)
As the issue of damages involves questions of fact, appellate courts are bound to defer to the trial court on credibility issues.
One of the most time-honored principles of appellate review is that trial courts are best situated to determine the credibility of the witnesses and to resolve factual disputes hinging on credibility determination. See State v. Pruett, 788 S.W.2d 559, 561 (Tenn. 1990); Tenn.-Tex Properties v. Brownell-Electro, Inc., 778 S.W.2d 423, 425-26 (Tenn. 1989). Accordingly, appellate courts routinely decline to second-guess a trial court's credibility determinations unless there is concrete, clear, and convincing evidence to the contrary. See Bingham v. Dyersburg Fabrics Co., Inc., 567 S.W.2d 169, 170 (Tenn. 1978); Thompson v. Creswell Indus. Supply, Inc., 936 S.W.2d 955, 957 (Tenn.Ct.App. 1996).
The most often cited reason for this principle can be traced to the fact that trial judges, unlike appellate judges, have an opportunity to observe the manner and demeanor of the witnesses while they are testifying. See Bowman v. Bowman, 936 S.W.2d 563, 566 (Tenn.Ct.App. 1991). There are, however, other reasons for this principle. As the United States Supreme Court has observed:
The trial judge's major role is the determination of fact, and with experience in fulfilling that role comes expertise. Duplication of the trial judge's efforts in the court of appeals would very likely contribute only negligibly to the accuracy of fact determination at a huge cost in diversion of judicial resources. In addition, the parties to a case on appeal have already been forced to concentrate their energies and resources on persuading the trial judge that their account of the facts is the correct one; requiring them to persuade three more judges at the appellate level is requiring too much.
Anderson v. City of Bessemer City, 470 U.S. 564, 574-75, 105 S.Ct. 1504, 1512, 84 L.Ed.2d 518 (1985).
Mitchell v. Archibald, 971 S.W.2d 25, 29 (Tenn.Ct.App. 1998).
Reviewing the evidence in the record under Tennessee Rule of Appellate Procedure 13(d), we cannot say that the evidence preponderates against the findings of the trial court. The testimony of Mr. Johnson is primarily based on a comparison with a Kentucky subdivision which he admits is not comparable to the City of Clarksville. His findings as to damages for a temporary nuisance are essentially based upon the same methods by which he calculated damages for a permanent nuisance. The trial court chose to accept the testimony of Mr. Metcalf even though he asserted that if the Shearron property along with adjacent properties increased in value in the period following the flooding, no damages existed. Such statement is incorrect. Ducktown Sulpher, Copper and Iron Co. v. Barns, 60 S.W. 593, 606 (Tenn. 1900).
The trial court concluded that Appellant had failed to carry the burden of proof to establish any damages beyond $975 for losses of a garden shed and replacement and relocation of a water heater. Under the restraints of the standard for appellate review set forth in Tennessee Rule of Appellate Procedure 13(d), we cannot say that the evidence preponderates against the decision of the trial court.
Judgment of the trial court is in all respect affirmed and the case remanded for such further proceedings as may be necessary. Costs of the cause are assessed to Appellants, for which execution may issue if necessary.