                 IN THE COURT OF APPEALS OF TENNESSEE
                              AT JACKSON
                                   January 17, 2007 Session

      CHARLES W. DARNELL d/b/a EUROPEAN SERVICE WERKS v.
                   JOHNNY W. BROWN, ET AL.

                  Direct Appeal from the Chancery Court for Shelby County
                        No. 06-0603-2   Arnold B. Goldin, Chancellor



                   No. W2006-01084-COA-R3-CV - Filed January 30, 2007


Plaintiff appeals the trial court’s dismissal of Plaintiff’s action immediately following a hearing on
Plaintiff’s motion for temporary injunction. We affirm in part, vacate in part, and remand for further
proceedings.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed in part;
                            Vacated in part; and Remanded

DAVID R. FARMER , J., delivered the opinion of the court, in which W. FRANK CRAWFORD , P.J., W.S.,
and ALAN E. HIGHERS, J., joined.

Jeffrey D. Germany, Memphis, Tennessee, for the appellant, Charles W. Darnell.

R. Porter Feild, Memphis, Tennessee, for the appellees, Johnny W. Brown and Marsha Brown,
individually and d/b/a Hardscapes and J & B Company.

                                             OPINION

       Plaintiff/Appellant Charles W. Darnell d/b/a European Service Works (Mr. Darnell) and
Defendants/Appellees Johnny W. Brown and Marsha Brown, d/b/a Hardscapes and J & B Company
(“the Browns”) operate neighboring businesses in Memphis. Mr. Darnell repairs and services
European-made motor vehicles; the Browns manufacture mulch. In the course of their business, the
Browns use equipment known as “tub grinders” to grind trees and waste wood into mulch products.

       On March 27, 2006, Mr. Darnell filed a complaint styled “COMBINED COMPLAINT FOR
INJUNCTIVE RELIEF, INCLUDING A TEMPORARY RESTRAINING ORDER, REQUEST TO
ABATE A PRIVATE NUISANCE AND REQUEST FOR AN AWARD OF COMPENSATORY
AND PUNITIVE DAMAGES” in the Chancery Court of Shelby County. In his complaint, Mr.
Darnell alleged that the Browns’ tub grinders repeatedly fired metal objects onto his property; that
these “metal missiles” damaged his property and personal property owned by his customers; and that
the Browns’ operations regularly blanketed his property and his customers’ personal property with
mulch and mulch dust. Mr. Darnell also alleged that the projectiles threatened the safety of his
employees and customers; that he repeatedly had asked the Browns to implement safety precautions;
and that the Browns operated the tub grinders in contravention of the manufacturer’s specifications
and safety instructions. He also alleged that dust generated by the Browns’ operations damaged his
property and the personal property of his customers and threatened the health of his employees and
customers. In his complaint, Mr. Darnell asserted the Browns’ conduct was wanton and willful, and
that he had suffered damages as a direct and proximate result of that conduct. He prayed for an
immediate temporary restraining order, a temporary injunction, and a permanent injunction
prohibiting the Browns from operating the tub grinders in such a way as to permit objects and mulch
residue and dust to be discharged onto his property. Mr. Darnell also prayed for a declaration that
the Browns’ activities constitute a private nuisance, an order abating that nuisance, compensatory
damages in the amount of $50,000, and punitive damages in the amount of $500,000.

        On April 5, the trial court issued a fiat and temporary restraining order prohibiting the
Browns from operating their equipment in such a manner as to allow projectiles to be launched onto
Mr. Darnell’s property. The trial court set a hearing date of April 11, 2006, to hear Mr. Darnell’s
application for temporary injunction. On April 6, the Browns filed a memorandum of law in
opposition to Mr. Darnell’s application for temporary injunction. The Browns also filed an affidavit
of Allen Simpson (Mr. Simpson), an inspector with Memphis and Shelby County Health Department
(“the Department”). In his affidavit, Mr. Simpson stated that he previously had investigated several
complaints made by the Browns’ neighbors regarding “fugitive dust,” and that the Department had
required the Browns to install a dust abatement system. He stated that it was his understanding that
the Browns had installed a water system to abate the dust, and that the use of water generally was
the best system for abating the discharge of fugitive dust. Mr. Simpson further stated that the
Department had received no further complaints regarding dust from the Browns’ property since the
2001 complaints were resolved.

        The trial court held a hearing on Mr. Darnell’s application for temporary injunction on April
11, 2006. At the hearing, the Browns consented to a permanent injunction enjoining the launching
of objects onto Mr. Darnell’s property. Following a hearing that the trial court and parties agreed
was limited to “the dust issue,” the trial court dismissed the matter. On April 17, 2006, the trial court
entered an order granting a permanent injunction prohibiting the Browns from operating their
business in such a manner as to allow metal projectiles from being thrown, launched or fired from
their mulching equipment and dismissing all other claims. Mr. Darnell filed a timely notice of
appeal to this Court. We affirm the judgment on injunctive relief, vacate the order dismissing the
matter, and remand for further proceedings.

                                           Issues Presented

        Mr. Darnell presents the following issue for our review:




                                                  -2-
       Did the trial court err when, immediately following the hearing on [Mr. Darnell’s]
       application for a temporary injunction, the court dismissed Plaintiff’s complaint in
       its entirety, either sua sponte or in response to the oral argument of Defendants’
       counsel?

                                         Standard of Review

       Our standard of review of a trial court sitting without a jury is de novo upon the record.
Wright v. City of Knoxville, 898 S.W.2d 177, 181 (Tenn. 1995). There is a presumption of
correctness as to the trial court’s findings of fact, unless the preponderance of evidence is otherwise.
Tenn. R. App. P. 13(d). We review the trial court’s conclusions on matters of law de novo, with no
presumption of correctness. Tenn. R. App. P. 13(d); Bowden v. Ward, 27 S.W.3d 913, 916 (Tenn.
2000).

                                               Analysis

         On appeal, Mr. Darnell contends it was error for the trial court to dismiss the action, whether
sua sponte or in response to motion by the Browns, immediately following a hearing on his motion
for temporary injunction. He asserts the trial court improperly treated the April 11, 2006, hearing
on his application for a temporary injunction, which the court specifically limited to the “dust issue,”
as a trial on the merits without notice and without affording him the opportunity to respond to the
Browns’ arguments. Mr. Darnell’s argument, as we perceive it, is that the trial court improperly
consolidated a hearing on his application for temporary injunction with a hearing on the merits. The
Browns, on the other hand, assert the trial court did not improperly consolidate the hearings, but
granted their oral motion to dismiss on the basis of laches.

       The Tennessee Rules of Civil Procedure provide:

       Consolidation of Hearing with Trial on Merits. Before or after the
       commencement of the hearing of an application for a preliminary injunction, the
       Court may order the trial of the action on the merits to be advanced and consolidated
       with the hearing of the application. Even when this consolidation is not ordered, any
       evidence received upon an application for a preliminary injunction which would be
       admissible upon the trial on the merits becomes part of the record on the trial and
       need not be repeated upon the trial. This subdivision [65.04(7)] shall be so construed
       and applied as to save to the parties any rights they may have to trial by a jury.

Tenn. R. Civ. P. 65.04(7).

       It is undisputed that the trial court in this case did not order a Rule 65.04(7) consolidation,
nor did it provide notice to the parties of an intent to consolidate the hearings. Although Rule
65.04(7) clearly establishes that it is within the authority of the court to order an application for
temporary injunction consolidated with a hearing on the merits, it may not exercise such authority


                                                  -3-
without notice to the parties. Johnson v. City of Clarksville, No. M2001-002273-COA-R3-CV, 2003
WL 21266937, at *3 (Tenn. Ct. App. June 3, 2003)(no perm. app. filed)(citing Oak Ridge FM, Inc.,
v. Wicks Broadcasters, Ltd., No. 03A01-9409-CH-00318, 1995 WL 40303 at * 3 (Tenn. Ct. App.
Feb. 1, 1995)). Notice of the issues to be tried is fundamental to the judicial process, and parties are
entitled to such notice in advance of the trial date. Id.; Sunburst Bank v. Patterson, 971 S.W.2d 1,
6 (Tenn. Ct. App.1998). The United States Supreme Court has addressed the identical language of
Fed. R. Civ. P. 65(a)(2), opining: “[b]efore such an order [of consolidation] may issue, however, the
courts have commonly required that ‘the parties should normally receive clear and unambiguous
notice . . . either before the hearing commences or at a time which will still afford the parties a full
opportunity to present their respective cases.’” Johnson, 2003 WL 21266937, at *3 (citing University
of Texas v. Camenisch, 451 U.S. 390, 395 (1981)(quoting Pughsley v. 3750 Lake Shore Drive
Cooperative Bldg., 463 F.2d 1055, 1057 (C.A.7 1972))). We agree with Mr. Darnell that, in so far
as the trial court consolidated the hearing on temporary injunction with a hearing on the merits, it
was error for the trial court to dismiss the case without a Rule 65.04(7) order of consolidation or
notice to the parties allowing them sufficient time to prepare for a hearing on the merits.

        We next turn to the Browns’ assertion that the trial court did not improperly consolidate the
hearing on temporary injunction with a hearing on the merits, but granted their oral motion to
dismiss based on the doctrine of laches. We find this argument somewhat disingenuous where the
Browns’ alleged oral motion to dismiss based on laches was made at the April 11 hearing on
temporary injunction. Further, an award based on the equitable defense of laches must be predicated
on the trial court’s finding of inexcusable, negligent, or unreasonable delay on the party asserting the
claim, and resulting prejudice to the defendant. Finova Capital Corp. v. Regal, 195 S.W.3d 656, 660
(Tenn. Ct. App. 2006). It is an equitable defense that requires the finder of fact to determine whether
it would be inequitable or unjust to enforce the claimant’s rights. Id. The doctrine of laches
generally applies to actions that are not governed by a statute of limitations, but it may be applied
within a statutory limitations period in the case of gross laches. Id. Gross laches occurs where there
has been a “long and unreasonable acquiescence in adverse rights.” Id. (quoting John P. Saad &
Sons, Inc. v. Nashville Thermal Transfer Corp., 715 S.W.2d 41, 46 (Tenn.1986)(quoting Ledford
v. Lee, 29 Tenn.App. 660, 200 S.W.2d 393, 398 (1946) cert denied (Tenn.1947))(quoting Gibson's
Suits in Chancery, § 70, p. 87))). Further, gross laches requires prejudice to the defendant such as
the loss of evidence and witnesses or a considerable accumulation of interest resulting from the
unjustified delay of the plaintiff. Id.

        We note that the trial court’s order in this matter does not state the grounds upon which the
court dismissed Mr. Darnell’s complaint for damages or for injunctive relief with respect to the dust
issue. However, upon review of the transcript of the April 11 hearing, we note that the Browns’
legal counsel argued that the court should consider the nuisance asserted by Mr. Darnell to be
permanent in nature and should dismiss Mr. Darnell’s complaint for damages based upon the statute
of limitations. Counsel further argued that there had been no proof of immediate and irreparable
harm that would justify a temporary injunction.




                                                  -4-
        We do not agree with the Brown’s characterization of this interchange as an oral motion to
dismiss the entire cause, including the demand for compensatory damages, based on laches.
Moreover, if we were to accept as true the Browns’ contention the trial court dismissed the entire
matter based on laches upon oral motion of counsel, then the trial court clearly combined the April
11 hearing on a temporary injunction with respect to the “dust issue” with a hearing on the merits
of a laches defense.

        Finally, we note that Tennessee law requires a party asserting affirmative defenses, including
the equitable defense of laches, to assert them in an appropriate pleading. Tenn. R. Civ. P. 8.0; In
re Estate of Baker, 207 S.W.3d 254, 264-65 (Tenn. Ct. App. 2006). Rule 8.03 provides:

               In pleading to a preceding pleading, a party shall set forth affirmatively facts
       in short and plain terms relied upon to constitute accord and satisfaction, arbitration
       and award, express assumption of risk, comparative fault (including the identity or
       description of any other alleged tortfeasors), discharge in bankruptcy, duress,
       estoppel, failure of consideration, fraud, illegality, laches, license, payment, release,
       res judicata, statute of frauds, statute of limitations, waiver, and any other matter
       constituting an avoidance or affirmative defense. When a party has mistakenly
       designated a defense as a counterclaim or a counterclaim as a defense, the court, if
       justice so requires, shall treat the pleading as if there had been a proper designation.

Tenn. R. Civ. P. 8.03.

       Clearly, the Browns filed no pleading in the trial court asserting laches as an affirmative
defense. Further, even if we were to regard the Browns’ memorandum of law in opposition to Mr.
Darnell’s application for temporary injunction as a “pleading,” it is applicable only to Mr. Darnell’s
application for injunctive relief and not to his claim for compensatory or punitive damages.
Accordingly, if the trial court dismissed this matter based on laches, it did so without the Browns’
having properly pled the defense and by improperly combining a hearing on Mr. Darnell’s
application for temporary injunction with a hearing on the merits of a laches defense without notice.

                                              Holding

        Upon review of the record, we agree with Mr. Darnell that the trial court improperly
consolidated the April 11, 2006, hearing on Mr. Darnell’s application for temporary injunction with
a hearing on the merits without notice to the parties. Accordingly, we vacate the order dismissing
the matter. We affirm the judgment of the trial court enjoining the Browns from discharging
projectiles onto Mr. Darnell’s property and implicitly denying Mr. Darnell’s application for




                                                 -5-
temporary injunction with respect to “the dust issue.” This cause is remanded for further
proceedings. Costs of this appeal are taxed to the Appellees, Johnny W. Brown and Marsha Brown,
individually and d/b/a Hardscapes and J & B Company.



                                                    ___________________________________
                                                    DAVID R. FARMER, JUDGE




                                              -6-
