               IN THE COURT OF APPEALS OF TENNESSEE
                           AT NASHVILLE
                              October 11, 2016 Session

DEMENT CONSTRUCTION COMPANY, LLC v. LUCAS C. NEMETH, ET
                       AL.

               Appeal from the Circuit Court for Rutherford County
                        No. 63359 J. Mark Rogers, Judge
                    ___________________________________

             No. M2015-02204-COA-R3-CV – Filed December 20, 2016
                    ___________________________________


This case arises from landowners‟ counter-suit for damages allegedly resulting from a
construction company‟s use of the landowners‟ property to store excess topsoil from a
road construction project. Following a trial, the jury returned a verdict in favor of the
construction company, finding that the construction company was not responsible for the
alleged damage to the property. The landowners appeal, asserting that the trial court
made erroneous evidentiary rulings and failed to properly instruct the jury. Finding no
error, we affirm the trial court.

  Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

ANDY D. BENNETT, J., delivered the opinion of the court, in which RICHARD H. DINKINS
and KENNY W. ARMSTRONG, JJ., joined.

G. Sumner R. Bouldin, Jr., Murfreesboro, Tennessee, for the appellants, Lucas C.
Nemeth, Molly Nemeth, and Mischa Nemeth.

Edwin E. Wallis, Jr., Jackson, Tennessee, and Evan Cope and Nicholas C. Christiansen,
Murfreesboro, Tennessee, for the appellee, Dement Construction Company, LLC.

                                       OPINION

       In the summer of 2011, Dement Construction, LLC (“Dement”) was engaged in a
road construction project for the City of Murfreesboro in Rutherford County, Tennessee.
Dement entered into an oral agreement with Lucas Nemeth to store topsoil on Nemeth‟s
property located at 2887 Barfield Road, Murfreesboro, Tennessee (“the Property”) during
the course of the construction project.
       On August 12, 2011, Dement filed a complaint against Lucas Nemeth and his
wife, Molly Nemeth (collectively, “the Nemeths”), alleging that the Nemeths “failed to
permit Dement to retrieve the topsoil,” and sought a writ of replevin, temporary
injunction, compensatory damages, and punitive damages. Mischa Nemeth, Lucas
Nemeth‟s brother, was later added as a party to the lawsuit due to his ownership interest
in the property in question. On October 31, 2011, the trial court held a hearing on
Dement‟s request for injunctive relief, and on November 10, 2011, entered an order
allowing Dement to remove the topsoil from the Nemeths‟ property upon posting a bond
for any damages associated with the removal.

       On November 10, 2011, the Nemeths filed an amended answer and counterclaim
seeking monetary relief. Specifically, the Nemeths alleged that Dement “intentionally
misrepresented the fact that Dement intended to occupy several acres of Nemeth‟s
property, and to waste material thereon, by telling Nemeth that Dement would only have
„a couple loads‟ spill over onto Nemeth‟s property from the temporary construction
easement,” and that Dement operated heavy equipment on the Property which caused
damage to the Property. On January 31, 2012, Dement filed a reply to the Nemeths‟
counterclaim. Several ensuing motions and orders were filed unrelated to the issues on
appeal, and a pretrial conference was held on February 19, 2015, at which Dement
declared that it was not seeking monetary damages against the Nemeths.

        The issues on appeal arise from a five-day jury trial which was held on the
Nemeths‟ counterclaim. Lucas Nemeth, co-owner of the Property; Randy Dickerson, a
soil scientist; William Huddleston, a civil engineer; Jackie Wilson, a grading
superintendent at Dement Construction; Mischa Nemeth, co-owner of the Property;
Russell Parrish, an appraisal expert; and James Reed, an engineer and land surveyor,
testified during the trial.

       Following the testimony of Mischa Nemeth, the trial court solicited written,
anonymous questions from the jury in accordance with Tenn. R. Civ. P. 43A.03. The
jurors proposed the following three questions to be asked of Mischa Nemeth:

      (1) Was building Veterans Parkway a free improvement to your property?
      (2) How much would you estimate your property value increased after
      Veterans Parkway was put in?
      (3) Would you rather Veterans Parkway not be put in and your property
      not be used to temporarily store the soil and rock?

The attorneys for both parties engaged in a lengthy discussion of the questions with the
trial court judge outside the presence of the jury. The Nemeths‟ attorney objected to the
questions, stating, “Objection to relevance. Has nothing to do with any of the issues in
this suit. If it were a condemnation involving - - some of them would have some
relevance. This isn‟t a condemnation.” The trial court overruled the objection and
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allowed the questions to be asked of Mischa Nemeth.

       Russell Parrish, an appraisal expert for the Nemeths testified next. The Nemeths‟
attorney posed a series of questions to Mr. Parrish regarding the concept of eminent
domain and special benefits. The following dialogue occurred:

       [Nemeths‟ Attorney]: Okay. Now, let me ask you about some of those
       concepts. First explain to me the concept in the eminent domain world of a
       special benefit?
       [Dement‟s Attorney]: I‟m going to object. Can we approach?
       ....
       (The following proceedings were had before the Court and out of the
       hearing of the Jury)
       [Dement‟s Attorney]: What he does on condemnation cases is irrelevant.
       [Nemeths‟ Attorney]: It is now.
       COURT: Why is it relevant?

Counsel for the Nemeths argued that the jurors‟ questions had opened the door to
testimony about condemnation law. The trial court sustained Dement‟s objection and
permitted the Nemeths to submit an offer of proof, during which Mr. Parrish testified
more extensively regarding the concept of “special benefits.” At the jury charge
conference, the Nemeths submitted a proposed “curative” jury instruction. The trial court
declined to use the proposed jury instruction.

       After deliberations, the jury returned a verdict in favor of Dement, finding that the
Nemeths did not prove that Dement was at fault for damages sustained to the Property.
The jury did not reach the question of compensatory damages. The Nemeths appeal,
asserting that the trial court erred in allowing the juror questions, erred in failing to
permit the Nemeths to introduce testimony regarding the concept of “special benefits,”
and improperly disallowed their proposed curative jury instruction.

                                  STANDARD OF REVIEW

       Trial court judges are afforded broad discretion to direct the “course and conduct”
of jury trials. State v. Caughron, 855 S.W.2d 526, 541 (Tenn. 1993). “Such discretion
necessarily extends to making determinations regarding the admissibility of evidence, see
Shipley v. Williams, 350 S.W.3d 527, 551 (Tenn. 2011), and controlling the scope and
manner of examination of witnesses.” Pyle v. Mullins, No. E2012-02502-COA-R3-CV,
2013 WL 6181956, at *5 (Tenn. Ct. App. Nov. 25, 2013) (citing Coffee v. State, 216
S.W.2d 702, 703 (Tenn. 1948)). A trial court‟s “decision to admit or exclude evidence
will be overturned on appeal only where there is an abuse of discretion.” Mercer v.
Vanderbilt Univ., Inc., 134 S.W.3d 121, 131 (Tenn. 2004) (citing Otis v. Cambridge Mut.
Fire Ins. Co., 850 S.W.2d 439, 442 (Tenn. 1992)). A trial court abuses its discretion
                                           -3-
when it “„applie[s] an incorrect legal standard, or reache[s] a decision which is against
logic or reasoning that cause[s] an injustice to the party complaining.‟” Eldridge v.
Eldridge, 42 S.W.3d 82, 85 (Tenn. 2001) (quoting State v. Shirley, 6 S.W.3d 243, 247
(Tenn. 1999)).

       “Whether a jury has been properly instructed and whether an error in instruction
more probably than not affected the jury‟s verdict are questions of law that are reviewed
de novo with no presumption of correctness.” Troup v. Fischer Steel Corp., 236 S.W.3d
143, 149 (Tenn. 2007).

                                          ANALYSIS

      The issues on appeal stem from the jurors‟ questions the trial court asked of
Mischa Nemeth. Tennessee Rule of Civil Procedure 43A.03 governs the procedure
whereby jurors may ask questions of a witness:

      In the court‟s discretion, a juror desiring to propound a question to a
      witness may be permitted to do so. The juror must put the question in
      written form and submit it to the judge through a court officer at the end of
      a witness‟ testimony. The judge shall review all such questions and, outside
      the hearing of the jury, shall consult the parties about whether the question
      should be propounded. The judge, in his or her discretion, may ask the
      juror‟s question in whole or part and may change the wording of the juror‟s
      question before propounding it to the witness. The judge may permit
      counsel to ask the question in its original or amended form in whole or part,
      in the judge‟s discretion. When juror questions are permitted, early in the
      trial jurors shall be instructed about the mechanics of asking a question. In
      addition, the jurors shall be instructed to give no meaning to the fact that
      the judge chose not to ask a question or altered the wording of a question
      submitted by a juror. A juror‟s question shall be anonymous, so that the
      juror‟s name is not included in the question. All jurors‟ questions, whether
      approved or disapproved by the court, shall be retained for the record.

At the conclusion of Mischa Nemeth‟s testimony, the trial court solicited written
questions from the jury in accordance with Tenn. R. Civ. P. 43A.03. The trial court then
held a bench conference, outside the presence of the jury, during which the Nemeths
raised a relevancy objection to the questions, which the trial court overruled. The court
proceeded with the following colloquy:

      THE COURT: . . . Was building Veterans Parkway a free improvement to
      your property?
      THE WITNESS: Yes.
      THE COURT: Next question: How much would you estimate your
                                          -4-
      property value increased after Veterans Parkway was put in?
      THE WITNESS: I don‟t know.
      THE COURT: Next question: Would you rather Veterans Parkway not be
      put in and your property not be used to temporarily store the soil and rock?
      ....
      THE WITNESS: I would rather Veterans Parkway not be put in and my
      property not have been damaged by storing, by the heavy equipment.
      THE COURT: Thank you, sir. You can step down.

        The Nemeths first argue that the juror questions were “irrelevant and highly
prejudicial” because “the ultimate question at trial was whether Dement damaged the
Nemeths‟ property.” The Tennessee Rules of Evidence define “relevant evidence” as
“evidence having any tendency to make the existence of any fact that is of consequence
to the determination of the action more probable or less probable than it would be without
the evidence.” TENN. R. EVID. 401. Even if relevant, evidence may still be “excluded if
its probative value is substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury, or by considerations of undue delay,
waste of time, or needless presentation of cumulative evidence.” TENN. R. EVID. 403.
Trial courts must balance the probative value of the evidence against its potential
prejudicial effect, and “when the balance between the evidence‟s probative value and any
prejudicial effect is close, the evidence should be admitted.” Goodale v. Langenberg,
243 S.W.3d 575, 587 (Tenn. Ct. App. 2007). Thus, “excluding relevant evidence under
[TENN. R. EVID.] 403 „is an extraordinary step that should be used sparingly.‟” Id.
(quoting Richardson v. Miller, 44 S.W.3d 1, 21 (Tenn. Ct. App. 2000)).

       We have reviewed the jurors‟ questions and the answers given by Mischa Nemeth
and have determined that the trial court did not err in allowing the jurors‟ questions. The
Nemeths define the “ultimate question at trial” too narrowly. The jurors‟ questions were
relevant to the issue of whether the alleged damage Dement caused to the Property
affected the Property‟s value. The jury ultimately found that Dement was not at fault for
damages to the Nemeths‟ property, thus it never reached the issue of compensatory
damages. As this Court has explained, excluding relevant evidence should be done
“sparingly.” Goodale, 243 S.W.3d at 587. Moreover, we find no basis to conclude that
the questions asked of and answered by Mischa Nemeth influenced the jury in such a way
that the Nemeths were unfairly prejudiced. The trial court did not abuse its discretion in
allowing the jurors‟ questions.

        Next, the Nemeths assert the trial court erred in refusing to allow the Nemeths‟
attorney to ask follow-up questions to Mischa Nemeth in response to the jurors‟
questions. Rule 43A.03 does not require the judge to allow each side to ask follow-up
questions based on the witness‟s responses to juror questions. “[T]he propriety, scope,
manner and control of the examination of witnesses is a matter within the discretion of
the trial judge.” Caughron, 855 S.W.2d at 540. We find nothing in the record that would
                                           -5-
lead us to conclude that the trial court abused its discretion in refusing to allow the parties
to ask follow-up questions of Mischa Nemeth after he answered the jurors‟ questions.

       The Nemeths also assert the court erred in sustaining Dement‟s objection to
Russell Parrish‟s testimony regarding the concept of “special benefits.” The pertinent
portion of Mr. Parrish‟s testimony is as follows:

        [Nemeths‟ Attorney]: Okay. I want you to put on your eminent domain hat
        for me a minute, if you would?
        [Mr. Parrish]: All right, sir.
        [Nemeths‟ Attorney]: Okay. Now I have some questions of you and I want
        to preface that by asking you, you told us earlier that you have been
        qualified as an expert witness in condemnation cases throughout Middle
        Tennessee, is that correct?
        [Mr. Parrish]: Yes, sir.
        [Nemeths‟ Attorney]: And that includes this Court, does it not?
        [Mr. Parrish]: Yes, sir.
        [Nemeths‟ Attorney]. And it also includes the Federal Court in Nashville,
        correct?
        [Mr. Parrish]: That is correct.
        [Nemeths‟ Attorney]: Okay. And you testify about condemnation matters
        all the time, is that right?
        [Mr. Parrish]: Yes, sir.
        [Nemeths‟ Attorney]: Okay And when you look -- and there are actually
        treatises about eminent domain that experts like you refer to and there are
        certain concepts included from these appraisal institute manuals, would that
        be true?
        [Mr. Parrish]: Yes, sir.
        [Nemeths‟ Attorney]: Okay. Now, let me ask you about some of those
        concepts. First explain to me the concept in the eminent domain world of a
        special benefit?
        [Dement‟s Attorney]: I‟m going to object. Can we approach?
        [Nemeths‟ Attorney]: Yes, we can approach.

We have reviewed the record and have determined that the trial court did not abuse its
discretion when it prohibited the introduction of proof regarding “special benefits,” a
concept intertwined with the legal theory of eminent domain.1 Eminent domain is the
“power of the government to take privately-owned property, in particular land, and

        1
           Black‟s Law Dictionary defines “special benefit,” in the context of eminent domain, as “A
benefit that accrues to the owner of the land in question and not to any others. Any special benefits
justify a reduction in the damages payable to the owner of land that is partially taken by the government
during a public project.” BLACK‟S LAW DICTIONARY (10th ed. 2014).
                                                  -6-
convert it to public use, subject to reasonable compensation to the property owner for the
taking.” Windrow v. Middle Tenn. Elec. Membership Corp., 376 S.W.3d 733, 736-37
(Tenn. Ct. App. 2012). This case involves a dispute between a private citizen and a
construction company. The government‟s power of eminent domain, and the concept of
special benefits, therefore, have no relevance to this case, and the trial court did not err in
excluding testimony related to these issues.

      Finally, the Nemeths argue that the trial court erred in refusing to adopt their
proposed “curative” jury instruction, which stated:

       During the course of this trial, certain questions were asked by you
       regarding any appreciation or enhancement of the property due to the
       Veterans Parkway project, and the opinion of the Nemeths as to whether
       they would prefer to have that improvement. Those questions were allowed
       to be asked, but the enhancement or appreciation of the property due to the
       project is not an issue in this action. You are not to consider it in your
       deliberations.

The Nemeths assert that the trial court erred because “the jury was not instructed that the
benefit of the road was not to be considered in evaluating a case based on
misrepresentation and property damage” and that the failure to provide the instruction
“affected the outcome of the trial.”

       Our Supreme Court has explained the standard for evaluating jury instructions in
civil matters thusly:

       Trial courts have “a duty to impart „substantially accurate instructions
       concerning the law applicable to the matters at issue.‟” [Nye v. Bayer
       Cropscience, Inc., 347 S.W.3d 686, 699 (Tenn. 2011)] (quoting Hensley v.
       CSX Transp., Inc., 310 S.W.3d 824, 833 (Tenn. Ct. App. 2009)). This is
       important because “[t]he legitimacy of a jury‟s verdict is dependent on the
       accuracy of the trial court‟s instructions, which are the sole source of the
       legal principles required for the jury‟s deliberations.” Id. In determining
       whether a jury instruction is substantially accurate, we review the charge in
       its entirety and consider it as a whole, and we will not invalidate an
       instruction that “„fairly defines the legal issues involved in the case and
       does not mislead the jury.‟” Id. (quoting Otis v. Cambridge Mut. Fire Ins.
       Co., 850 S.W.2d 439, 446 (Tenn. 1992)). Moreover, “[j]ury instructions are
       not measured against [a] standard of perfection.” Akers v. Prime Succession
       of Tenn., Inc., 387 S.W.3d 495, 504 (Tenn. 2012) (first alteration in
       original) (quoting City of Johnson City v. Outdoor W., Inc., 947 S.W.2d
       855, 858 (Tenn. Ct. App. 1996)).

                                             -7-
Spencer v. Norfolk S. Ry. Co., 450 S.W.3d 507, 510 (Tenn. 2014). A trial court‟s
judgment should not be reversed unless the improper denial of a request for a special jury
instruction “has prejudiced the rights of the requesting party.” Johnson v. Tenn. Farmers
Mut. Ins. Co., 205 S.W.3d 365, 372 (Tenn. 2006). “It is not sufficient that refusal to
grant the requested instruction may have affected the result, „[i]t must affirmatively
appear that it did in fact do so.‟” Id. (quoting Otis, 850 S.W.2d at 446).

       As we have previously mentioned, the jury returned a verdict in favor of Dement,
finding that Dement was not responsible for any damage to the Nemeths‟ property. In
reaching such a verdict, the jury was not required to address the issue of compensatory
damages. Because the jury never reached the question of damages, and in the absence of
evidence that the judge‟s refusal to grant the requested instruction affected the result of
the trial, we find the trial court did not err in denying the Nemeths‟ request for the
proposed instruction.

                                      CONCLUSION

       For the foregoing reasons, we affirm the trial court in all respects. Costs of the
appeal are assessed against the appellants, for which execution may issue if necessary.




                                                           _________________________
                                                           ANDY D. BENNETT, JUDGE




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