                 IN THE COURT OF APPEALS OF TENNESSEE
                              AT JACKSON
                                     July 21, 2009 Session

        BENTON COUNTY, TENNESSEE, ET AL. v. VERN FRANKLIN
                          CHUMNEY

                   Direct Appeal from the Circuit Court for Benton County
                       No. 7CCV-1149      Charles C. McGinley, Judge



                  No. W2008-02697-COA-R3-CV - Filed September 8, 2009


This is an eminent domain case. The Appellants appeal the trial court’s denial of a Tenn. R. Civ. P.
15.02 motion. We dismiss the appeal for failure to appeal a final judgment.

          Tenn. R. App. P. 3. Appeal as of Right; Appeal Dismissed and Remanded

J. STEVEN STAFFORD , J., delivered the opinion of the court, in which DAVID R. FARMER , J., and
HOLLY M. KIRBY , J., joined.

Ricky L. Wood, Parsons, Tennessee, for the Appellants, Benton County, Tennessee, Decatur County,
Tennessee; for and on behalf of Benton-Decatur Special Sewer District.

Robert L. Green, Memphis, Tennessee, for the Appellee, Vern Franklin Chumney.

                                             OPINION

         This case arises out of two complaints, one filed in Benton County, and the other filed in
Decatur County, relative to Petitions for Eminent Domain filed by the Appellants Benton County
and Decatur County for and on behalf of Benton-Decatur Special Sewer District. The Benton-
Decatur Special Sewer District (“Sewer District”) is a joint venture between the two counties to
install a sewer district in close proximity to I-40, which joins both counties. Several easements were
used by the Sewer District to complete the project. The property at issue in this appeal is owned by
the Appellee Vern Franklin Chumney, and lies in both Decatur and Benton counties. The separate
condemnation complaints were consolidated and tried together in the Circuit Court at Benton County
by consent of the parties.

        The petition to condemn the property was filed on February 5, 2007. On March 8, 2007, the
court entered an Order of Possession which states that the Sewer District “has fulfilled its statutory
notice requirements to Defendant”and that the Sewer District’s “right to condemn the...property and
take possession of...same has not been questioned nor disputed by objection of the Defendant.”
Consequently, under Tenn. Code Ann. § 29-17-803(c), the court ruled that, as the condemning
governmental entity, the Sewer District had the right to possession of the property. The property was
specifically identified as five permanent sewer easements across a portion of “Map/Par. 6-6.02,”
being more specifically described as “Easement ‘A’ (20-foot),” “Easement ‘B’ (30-foot),” “Easement
‘C’ (5-foot),” “Easement ‘D’ (20-foot),” and “Easement ‘E’ (20-foot).” The court also awarded the
Sewer District a “10-foot-temporary construction easement on various sides of and parallel and
adjacent to the...permanent easements,” which was to be used only during the construction phase of
the project. The determination of just and fair compensation for the easements was reserved for later
hearing.

       The hearing on compensation was held on May 9, 2008. At the outset of that hearing, the
court made the following comments concerning the scope of the hearing:

               THE COURT: The attorneys just met with me in chambers and have
               essentially informed the Court that the only issue in this case is the
               value of the property taken. The parties have stipulated that the date
               of taking will be considered the date of the appraisal.

               MR. WOOD [attorney for the Sewer District]: Right.

               THE COURT: And as a result, [the Court must determine] what the
               fair market value was at that time. Correct?

               MR. WOOD: That’s correct.

               MR. GREEN [attorney for Mr. Chumney]: That’s correct, Your
               Honor.

        The appraisal of the property described in the March 8, 2007 Order of Possession was
performed by James E. Wade, Jr., a State of Tennessee Certified Appraiser. Mr. Wade’s appraisal,
dated June 24, 2005, was admitted into evidence and states that the fair market value of the property,
reflected as Easements “A,” “B,” “C,” “D,” and “E” in the Order of Possession, is $80,612.40.

         At the hearing, Sam McIllwain, owner of the engineering firm employed by the Sewer
District to locate easements for the sewer project, testified that the original easement plan concerning
Mr. Chumney’s property was later modified. Mr. McIllwain testified that, because one of the
businesses to be served by the project closed, the Sewer District modified its plan to eliminate the
lines planned for that business. According to his testimony, the Sewer District actually used only
three easements (as opposed to the original five easements) in its project with the easements being
denoted as “11A,” “11B,” and “11C” on the trial exhibit map. On cross-examination, Mr. McIllwain
testified that the original plan was altered to avoid the substantial costs shown on Mr. Wade’s
appraisal.
         In his testimony, Mr. Wade states that he performed a revised appraisal based upon the
changes to the Sewer District’s plan. Specifically, Mr. Wade valued easement “11A” at $4,324,


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“11B” at $3,796. These totals, together with the value of the temporary easement “11C” resulted
in a new value of $9,534.19 for the easements that were actually used in the project. Mr. Wade
testified:

              Q. The revised appraisal you did only took in three easements; is that
              correct, that’s shown on this plat here?

              A. Yes, sir. I believe that’s right.

              Q. Okay. And that’s the property that was actually taken?

              A. Yes, sir. As–I believe that’s correct.

              Q. As testified to by Mr. McIllwain?

              A. Right.

              Q. Okay.

              THE COURT: When you say actually taken, what?

              MR. WOOD: Well, actually, the easements were revised.

              THE COURT: Writ of Possession–

              THE COURT: Yes, sir.

              THE COURT: –granting the sewer district the property is all final,
              right?

Following this exchange, Mr. Wood (attorney for the Sewer District) made the following, oral
motion:

              MR. WOOD: Well, that Order [the March 8, 2007 Order of
              Possession] shows that [the Sewer District was awarded five
              easements], Your Honor, but I’m going to–that needs to be amended
              to show the three easements that were actually taken. It’s not the five
              easements.

              THE COURT: But they’ve already taken it. Five.

              MR. WOOD: No, they’ve taken three is all they’ve taken. They
              revised.


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               THE COURT: They have taken five.

               MR. WOOD: Well, I would move the Court–

               THE COURT: They might have changed their plans on whether or
               not to actually utilize the easements, but the Writ of Possession
               granted them possession, both construction easements and permanent
               easements for all five, correct?

               MR. WOOD: The Order reflected that, but the Order is incorrect, and
               I’m moving to amend the Order to reflect the proof here today that the
               Order of Possession was only for three easements as testified to and
               it’s apprais[al]. If it’s a mistake, it was a mistake–a clerical mistake,
               a mistake filing the Order. There’s [sic] only three easements taken.
                       I move the Court at this time to do that and they know that.
               Five easements are not taken.

               MR. GREEN [attorney for Mr. Chumney]: Your Honor, the five
               easements were taken and Your Honor signed that Order back in
               March of 2007. That’s the final Order.... [W]e have established the
               value of those through this witness to be over $80,000. And we
               certainly would object to any attempt now to try to change the
               description of the property taken in that order.

               *                                       *                        *

               THE COURT: Okay. Judgment. The Court determines the value [to]
               be $80,612.40. That is actually the property that was taken in this.
               Benton County/Decatur County water district can utilize, it’s theirs
               for purpose of the easement. Apparently, they changed their plans,
               but the property taken, the value as of that date [is] $80,612.40.

               MR. WOOD: I would respectfully move the Court to be allowed to
               amend that Order, Your Honor.

               THE COURT: Overruled.

       Despite the trial court’s ruling, on May 19, 2008, the Sewer District filed a written “Motion
to Amend Pleadings to Conform to Evidence.” This motion was brought “pursuant to T.R.C.P.
15.02.” In addition to this Tenn. R. Civ. P. 15.02 motion, on May 19, 2008, the Sewer District also




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filed a Tenn. R. Civ. P. 60.02 motion for relief from the March 8, 2007 Order of Possession1. In both
motions, the Sewer District seeks to have judgment entered in the amount of $9,634.19, which
amount is the uncontested value of the three easements that were actually used in the project (as
opposed to the $80,612.40 value of the five easements that were actually granted to the Sewer
District by the March 8, 2007 Order of Possession). In its Tenn. R. Civ. P. 60.02 motion, the Sewer
District asserts that “the Easement description attached to the Order of Possession was inadvertently
and mistakenly placed on the Orders and that the correct legal description [is the one showing the
use of only three easements].” By Order of September 18, 2008, the trial court denied the Sewer
District’s Tenn. R. Civ. P. 15.02 motion; however, from our review of the record, no ruling was ever
made on the Tenn. R. Civ. P. 60.02 motion. On November 7, the trial court entered its Order on the
hearing to determine fair and just compensation, and awarded a judgment in favor of Mr. Chumney
in the amount of $80,612.40. The Sewer District appeals this order and raises two issues for review
as stated in its brief:

                  1. Is the Defendant bound by stipulations entered in the record prior
                  to trial?

                  2. Did the trial court err by not allowing Plaintiff’s oral motion to
                  amend the pleadings to conform to the evidence following the trial
                  and thereafter by written motion pursuant to T.R.C.P. 15.02?

         Although neither party has raised the issue of whether the order appealed
is a final judgment, we must review the record sua sponte to determine whether we have jurisdiction
to adjudicate this appeal. State ex rel Garrison v. Scobey, No. W2007-02367-COA-R3-JV, 2008
WL 4648359, at *4 (Tenn. Ct. App. Oct. 22, 2008)(no perm. app. filed). Tenn. R. App. P. 13(b).
Tenn. R. App. P. 3(a) provides, in relevant part:

                  In civil actions every final judgment entered by a trial court from
                  which an appeal lies to the Supreme Court or Court of Appeals is
                  appealable as of right. Except as otherwise permitted in rule 9 and in
                  Rule 54.02 Tennessee Rules of Civil Procedure, if multiple parties or
                  multiple claims for relief are involved in an action, any order that
                  adjudicates fewer than all the claims or the rights and liabilities of
                  fewer than all the parties is not enforceable or appealable and is
                  subject to revision at any time before entry of a final judgment
                  adjudicating all the claims, rights, and liabilities of all parties.



         1
           We note that the Order of Possession (from which the Sewer District seeks relief) was not a final order as it
specifically reserved the issue of compensation for later hearing. In Town of Collierville v. Norfolk Southern Railway
Co., 1 S.W.3d 68 (Tenn. Ct. App. 1998), we held that an order of possession was not a final judgment appealable under
Tenn. R. App. P. 3 (and this was true even if the trial court included Tenn. R. Civ. P. 54.02 language). We opined that
the proper vehicle for bringing an appeal from an interlocutory order of possession was Tenn. R. App. P. 9. No
interlocutory appeal was filed in this case.

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        Under certain circumstances, a judgment that adjudicates fewer than all of the claims asserted
by the parties may be made final and appealable pursuant to Rule 54.02 of the Tennessee Rules of
Civil Procedure. In order to enter judgment under Rule 54.02, however, the trial court must make
an explicit finding that there is “no just reason for delay” and must expressly direct that a final
judgment be entered. In the absence of an order meeting the requirements of Rule 54.02, any trial
court order that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the
parties is not final or appealable as of right. See State ex rel Garrison v. Scobey, WL 4648359, at
*5.

        In this case, the trial court has not adjudicated the Sewer District’s Tenn. R. Civ. P. 60.02
motion. Moreover, the trial court did not make its order final under Rule 54.02. Accordingly, no
final judgment has been entered in the trial court, and we do not have jurisdiction to adjudicate the
issues raised on appeal. Tenn R. App. P. 3(a).2

         In light of the foregoing, this appeal is dismissed and this matter is remanded to the trial court
for all further proceedings as may be necessary and consistent with this Opinion. Costs of this appeal
are assessed against the Appellants, Benton County, Tennessee and Decatur County, Tennessee for
and on behalf of Benton-Decatur Special Sewer District, and their surety.




                                                                ___________________________________
                                                                J. STEVEN STAFFORD, J.




         2
            Like Tenn. R. Civ. P. 60.02(1), Tenn. R. Civ. P. 59 can provide relief from a judgment on account of
mistake, inadvertence, surprise, or excusable neglect. Henson v. Diehl Machines, Inc., 674 S.W.2d 307, 310
(Tenn.Ct.App.1984). When a case has not been fully adjudicated, the trial court should treat a Rule 60.02 motion as a
motion to alter or amend under Rule 59.04. See Savage v. Hildenbrandt, No. M 1999-00630-COA-R3-CV, 2001 WL
1013056, at *10 (Tenn.Ct.App. Sept.6, 2001). However, because no ruling was made on this purported Tenn. R. Civ.
P. 60.02 motion, we do not reach the question of whether the trial court should have treated the Tenn. R. Civ. P. 60.02
motion under Tenn. R. Civ. P. 59.04.

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