                IN THE COURT OF APPEALS OF TENNESSEE
                             AT JACKSON
                                 February 21, 2001 Session

 LARGENT CONTRACTING, INC., ET AL. v. DEMENT CONSTRUCTION
                   COMPANY, ET AL.

                 A Direct Appeal from the Circuit Court for Fayette County
                  No. 3564   The Honorable Jon Kerry Blackwood, Judge



                    No. W1999-02736-COA-R3-CV - Filed April 17, 2001


        Plaintiff-landowner sued county along with road contractor and subcontractor for damages
allegedly sustained when the defendant stored a large amount of broken concrete on his land
allegedly without his permission and for the defendant’s failure to remove the concrete when told
to do so. The trial court granted summary judgment to road contractor and the subcontractor, and
granted partial summary judgment to the county. After a nonjury trial on the remaining issue as to
the county, the trial court entered judgment for the county. Plaintiff appeals as to all three
defendants. We reverse in part, affirm in part.



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

W. FRANK CRAWFORD , P.J., W.S., delivered the opinion of the court, in which DAVID R. FARMER ,
J. and HOLLY KIRBY LILLARD , J., joined.

Richard G. Rosser, Somerville, For Appellant, Largent Contracting, Inc.

Darryl D. Gresham, Memphis, For Appellee, Dement Construction Company

James A. Hopper, Savannah, For Appellee, T J & L Construction Company, Inc.

James I. Pentecost, Jennifer K. Craig, Jackson, For Appellee, Fayette County, Tennessee




                                           OPINION
        On February 24, 1995, plaintiff, Largent Contracting, Inc.,1 filed its complaint against
Dement Construction Company, a Tennessee corporation, and Fayette County, Tennessee, alleging
in substance that defendant, Dement, negligently deposited a large amount of broken concrete from
the Highway 64 road bed on plaintiff’s property without permission. When due demand was made
to have the debris removed, defendants did not do so, and plaintiff avers that pursuant to defendant-
Dement’s contract for the work on Highway 64 it was responsible for properly disposing of the
material. Plaintiff also asserts that the defendants’ actions have caused it to suffer damages of loss
of use of his property for approximately two years, losing sale value of a proposed sale of the
property, for the expense incurred in removing the concrete, and that the actions of the defendants
constituted a temporary nuisance which resulted in these damages.

        In response to the complaint, defendant, Fayette County, filed a “Motion to Dismiss or to
Strike,” asserting that the complaint fails to state a claim upon which relief can be granted and, in
addition to moving to strike certain paragraphs of the complaint, the county fully answered the
complaint by joining issue thereon. The pleading further states that the plaintiff agreed to the storage
of the riprap upon its property, that the storage was done with his consent, and that if plaintiff
incurred any damages, it was because of its actions. Defendant, Dement, filed an answer and third
party complaint in which it denied the material allegations of the complaint and joined issue thereon.
Dement further stated that it was not responsible for the disposal of the broken concrete from the
road bed, and that it contracted with a subcontractor, T J & L Construction Company, to remove and
dispose of the concrete material. The answer further averred that arrangements were made by
T J & L with Fayette County for Fayette County to take charge of the material, and that Fayette
County thereupon handled the disposal of the material by obtaining consent from plaintiff for the
storage thereof. In its third party complaint, Dement sues T J & L by virtue of its contract whereby
T J & L was its subcontractor to handle the removal of the debris and to dispose of same. In
addition, Dement relies upon the indemnity clause wherein T J & L agrees to indemnify Dement
for any claims resulting from the subcontract. T J & L answered the third party complaint by
denying the material allegations against it and affirmatively avers that it performed its duties under
the contract with Dement. T J & L also avers that Fayette County wanted the broken concrete for
later use in its various governmental projects and agreed to take the concrete and dispose of same
properly. T J & L also filed a third party complaint against Fayette County seeking relief if T J & L
is held liable on the third party complaint filed by Dement because of Fayette County’s failure to
conform to their agreement.

        Fayette County responded to T J & L’s third party complaint with an answer denying the
material allegations of the third party complaint against it. Fayette County affirmatively stated that
T J& L’s complaint is barred by the statute of limitations, the statute of frauds, and that they are
entitled to no indemnity.


         1
            Somewhere along the course of the voluminous and rather perplexing pleadings in this cause, Amos E.
Largen t, Individu ally, was p laced in the caption o f the case. We have been unable to find in the record claims made
by Amos E. Largen t, individually, or any authorization for his name to be placed in the caption. Therefore, our
reference to defendant will be to Largent Contracting, Inc., and the defendant will be referred to in the singular.

                                                         -2-
       Dement filed a motion for summary judgment on October 11, 1996, as to the original
complaint of Largent, and TJ&L filed a motion for summary judgment on Dement’s third party
complaint on November 12, 1996. In its motion, Dement relies upon the affidavit of Ty Capp, Vice-
President of Dement, and the contract between Dement and T J & L. T J & L, in its motion, relies
upon discovery depositions of Mitchell Johnson, its superintendent, and Erwin Kee, the
superintendent of Public Works for Fayette County.

        On November 15, 1996, plaintiff filed a motion to amend its complaint to add the defendant,
T J& L Construction Company, Inc., because of Dement’s assertion in the summary judgment
motion that T J& L Construction Company, Inc., is solely liable for any damages. T J & L filed a
response to plaintiff’s motion to amend denying it was involved in any way and averring that Fayette
County actually made the arrangements for and deposited the concrete on plaintiff’s property. The
response also avers that plaintiff’s claim against it is barred by the statute of limitations, T.C.A. §
28-3-105 (1). In this regard, the motion states that the concrete was removed and placed on
plaintiff’s property in the fall of 1992, and that the motion to amend comes approximately four years
after the claimed act.

        Plaintiff filed a response to Dement’s motion for summary judgment, relying upon the
subcontract between Dement and T J & L and various affidavits. It relies upon proof that T J & L
is, in reality, an employee, and Dement is responsible for its action, that there was no written
permission from the plaintiff to store concrete on the property, and that plaintiff was unaware that
the concrete was placed on his property. By order entered December 18, 1996, the trial court, upon
consideration of the supporting affidavits, depositions, and the entire record, granted summary
judgment to Dement and, by virtue thereof, dismissed Dement’s third party complaint against T J
& L and T J & L’s third party complaint against Fayette County.

        On December 16, 1996, the trial court entered an order granting Largent’s motion to amend
to add T J & L as a defendant, and an amended complaint doing so was filed February 5, 1997. The
amended complaint2 alleges that T J & L had a contract with Dement for the removal and disposal
of the concrete, and that T J & L or M&L Construction Company3 negligently or intentionally
deposited this concrete, along with box culverts, on plaintiff’s property without any permission. The
amended complaint further states that plaintiff’s demand to have the concrete removed was not
honored by T J & L, and the complaint avers that the actions of T J & L and M & L Construction
Company constitute a nuisance, a trespass, and a conversion and was a fraud and deceit. It also
averred that T J & L was acting as the agent and employee of Dement. The amended complaint
further reiterates the various items of damages claimed by plaintiff.




        2
          Although the pleading is styled Amended Complaint, the body of the complaint reveals that it is in fact an
amendment to the complaint because there are no allegations against the other defendant in the so-called Amended
Com plaint. We are treating th e pleadin g as an am endm ent to the co mplain t.

        3
            It appears f rom the record th at M & L Con struction C ompa ny nev er mad e an app earance in this cause .

                                                           -3-
         T J & L answered the amendment to the complaint by denying the material allegations
thereof and joining issue thereon. The answer avers that T J & L had an oral agreement with Fayette
County to take and remove the material and properly store it and that the decision of where to store
it and the arrangements therefor were Fayette County’s alone. The answer further relies upon the
bar of the statute of limitations, T.C.A. § 28-3-105. The answer further avers that if Largent suffered
damages it was because of its own negligence of at least fifty percent.

       On June 9, 1997, T J & L filed a motion for summary judgment which averred that there were
no genuine issues as to any material fact and relies upon the pleadings and part of discovery
depositions of various witnesses which established that T J & L had an oral agreement with Fayette
County to remove the concrete rock, and that Largent gave Fayette County permission to place the
rock removed on its property.

       Among other things, Largent relies upon the affidavit of Amos Largent, plaintiff’s primary
owner and executive officer, that no permission was given for the dumping of the concrete on its
property. The affidavit also contains conclusory statements concerning dumping on the property by
T J & L.

       Fayette County filed a motion for summary judgment supported by a statement of undisputed
fact which, among other things, stated that Amos Largent granted permission for the dumping of the
concrete on the property.

        By order entered December 5, 1997, T J & L was granted summary judgment, and by order
entered February 11, 1998, Fayette County was granted a partial summary judgment as to any claims
of negligence and any claims under the suit for temporary nuisance concerning the rental value of
plaintiff’s property.

        The order granting summary judgment to T J & L was made a final order pursuant to the
provisions of Tenn.R.Civ.P. 54.02. On Feburary 12, 1998, plaintiff filed a motion pursuant to Rule
60.02 to set aside the order granting T J & L a summary judgment due to “mistake, inadvertence,
surprise, and/or inexcusable [sic] neglect.”

      A nonjury trial was held on the remaining case as to Fayette County on April 21, 1998, and
on August 31, 1998, the trial court filed Findings of Fact and Conclusions of Law, which we quote:

                      Based upon the entire record in this cause, the following
               findings of facts and conclusions of law are made:

               (1) Prior to 1991, Dement Construction Company entered into a
               contract with T J & L regarding a construction contract for a highway
               project of U. S. Highway 64. T J & L was to act as a subcontractor
               to remove riprap from the construction project.



                                                 -4-
(2) T J & L contacted agents for Fayette County, Tennessee to
determine if Fayette County would be interested in said riprap.

(3) Fayette County, Tennessee contracted with T J & L to take the
riprap and to stockpile same for later use by its Public Works
Department.

(4) Mr. Ray Kee, employee of said Department, was instructed by Mr.
Erwin Kee, Director of Public Works, to find a suitable location to
stockpile the riprap.

(5) The plaintiff was owner of real estate located within the City of
Oakland, Tennessee. Some of the plaintiff’s property was located
adjacent to the Highway 64 Project.

(6) In June 1992, Mr. Ray Kee contacted the plaintiff concerning
stockpiling the concrete riprap on plaintiff’s property.

(7) At this time, plaintiff was in the process of selling a portion of his
property to the City of Oakland for use as the city’s industrial park.

(8) Plaintiff instructed Mr. Ray Kee to contact the Mayor of Oakland
to receive permission to stockpile the riprap.

(9) Mr. Kee and plaintiff visited the plaintiff’s property and plaintiff
marked the area where the riprap could be stored. This area was a
low-lying area that needed filling.

(10) Later, Ray Kee placed wooden stakes to mark the area.

(11) The Mayor of Oakland also gave permission for the stockpiling.

(12) Trucks owned by Fayette County, as well as independent
trucking firms, began hauling the riprap to the area in June 1992, and
continued until September 1992.

(13) In December, plaintiff sold the southern tract of his land to the
City of Oakland as part of its industrial park. The middle of concrete
riprap was stockpiled on the boundary line of Oakland and plaintiff.

(14) In March 1994, plaintiff contracted to sell the remainder of this
tract to David McDowell.



                                   -5-
(15) A survey in June revealed that the boundary line for the proposed
tract to McDowell ran through the center of the concrete.

(16) Sewer lines could not be placed on this property until the
concrete was removed.

(17) Plaintiff’s contract with McDowell was contingent upon the
availability of the sewer.

(18) For several months, plaintiff discussed with various agencies the
necessity of the removal of the concrete.

(19) In September 1994, plaintiff contacted Mr. Erwin Kee, Director
of Public Works of Fayette County, and requested the removal.

(20) Fayette County advertised for bids for the removal of the
concrete. On October 20, plaintiff began to remove the concrete
riprap by taking several loads to the City lagoon and some loads to
the front of his property.

Fayette County also removed several loads of the concrete riprap
pursuant to an accepted bid.

Plaintiff also contracted with a private contractor to remove the
remainder for Two Thousand Seven Hundred and Sixty Dollars
($2,760.00).

             THE COURT FURTHER FINDS THAT:

(1) That plaintiff gave permission to Fayette County to stockpile the
concrete riprap on the subject property.

(2) The plaintiff always had knowledge of the location of the concrete
stockpile.

(3) There was no agreement between Fayette County and the plaintiff
as to any specified length of time that the concrete stockpile could
remain on the subject property.

(4) No demands were made on Fayette County to remove the concrete
until September or October 1994.

              WHEREFORE, THE COURT FINDS:


                                 -6-
               (1) That Fayette County did not create a nuisance on said property.

               (2) Plaintiff acquiesced in the placement of the concrete.

               (3) Judgment shall be entered for the defendant.

       A final judgment was entered September 29, 1998 in favor of defendant, Fayette County.

       On October 20, 1998, plaintiff filed a “Motion for New Trial; To Alter or Amend and/or To
Correct Findings of Fact and Conclusions of Law,” which the trial court denied by order entered
January 12, 1999.

       On January 25, 1999, T J & L filed a motion to assess discretionary costs to which plaintiff
responded on February 9, 1999. Notice of appeal was filed February 9, 1999.

        On September 28, 1999, the trial court entered an order granting plaintiff’s motion, pursuant
to Rule 60.02, to set aside the summary judgment in favor of defendant, T J & L, and in the same
order, again granted summary judgment to T J & L .

       Plaintiff presents five issues for review, which we restate only to the extent of presenting
them as a query:

               I. Whether the court erred in granting summary judgment in favor of
               T J & L construction company when the proof showed it stock piled
               concrete on the plaintiff’s property without permission, a lease or any
               right at all?

               II. Whether the trial court erred in granting discretionary costs to T
               J & L construction company, Inc. pursuant to Rule 54.04 of
               Tennessee Rules of Civil Procedure in that the defendant’s expenses
               were incurred prior to his being made a defendant and were mostly
               incurred defending against a third party complaint against T J & L
               construction company, Inc. and therefore they were neither reasonable
               nor necessary expenses regarding the complaint later filed against
               said defendant?

               III. Whether the court erred in granting summary judgment against the
               plaintiff in favor of the defendant, Dement Construction Company,
               Inc. when it had it agent T J & L construction Company, Inc. stock
               piled concrete on the plaintiff’s property without permission, a lease
               or any right at all?




                                                -7-
               IV. Whether the court erred in grating partial summary judgment in
               favor of the defendant, Fayette County, Tennessee upon the issue of
               negligence when the proof showed it stockpiled concrete on the
               plaintiff’s property without permission and then refused to remove it
               in a timely manner after being informed that the plaintiff stood to
               loose a great deal of money and that time was of the essence and the
               trial court erred in ruling that the plaintiffs could not testify regarding
               the rental value of his real property, could not introduce evidence of
               its rental value and could not introduce of loss of value of his real
               property due to the temporary nuisance?

               V. Whether the trial court erred in granting judgment after a trial
               upon the merits for the defendant, Fayette County, Tennessee against
               the plaintiff upon the issue of a temporary nuisance when the
               preponderance of the evidence at trial showed that the defendant
               illegally placed concrete on the plaintiff’s property without his
               permission and when it was shown at trial the nuisance could have
               been abated by the expenditure of labor and money?

       Appellee T J & L presents one issue for review which, as stated in its brief, is:

               1. That the honorable trial court abused its discretion in setting aside
               the order granting summary judgment to T J & L Construction
               Company, Inc., after the time for appeal had expired, based upon
               Tennessee Rules of Civil Procedure 60.02.

         We first address the issue by appellee, T J & L . Appellee states that the trial court abused
its discretion by setting aside the summary judgment “as the time for appealing had expired.” While
we agree with the appellee that the trial court may have abused its discretion, it was not because the
time for appealing had expired. Tenn.R.Civ.P. 60 is applicable only to final judgments; that is, those
judgments where the time for appeal has expired. Plaintiff’s motion to set aside the final judgment
is premised solely on the fact that when plaintiff’s attorney approved the order he did not realize that
it contained the Tenn.R.Civ.P. 54.02 language. The purpose of having counsel approve proposed
orders for entry is to assure the trial court that the order or judgment properly states the court’s
ruling. In this case, plaintiff’s attorney approved the order for entry and so certified that it was
correctly prepared. This situation is somewhat analogous to one signing a contract and later seeking
to avoid obligation under the contract by claiming to have been unaware of the contents of same.
The rule is succinctly set out in Giles v. Allstate Ins. Co., Inc., 871 S.W.2d 154, 156 (Tenn. Ct. App.
1993) wherein the Court said:
                         This same issue has been before the courts in this jurisdiction
                 in numerous cases and they have consistently held: “[T]hat if, without
                 being the victim of fraud [the insured] fails to read the contract or
                 otherwise to learn its contents, he signs the same at his peril and is


                                                  -8-
               estopped to deny his obligation, will be conclusively presumed to
               know the contents of the contract, and must suffer the consequences
               of his own negligence. (Citations omitted).

Under these circumstances, we feel that the trial court erred in setting aside the previously granted
final order of summary judgment.

       Moreover, it appears that the trial court had no jurisdiction to consider the Rule 60.02 motion.
In Spence v. Allstate Ins. Co., 883 S.W.2d 586 (Tenn. 1994), our Supreme Court so held, stating:

                       Therefore, we hold that a trial court has no jurisdiction to
               consider a Rule 60.02 motion during the pendency of an appeal. If a
               party wishes to seek relief from the judgment during the pendency of
               an appeal, he should apply to the appellate court for an order of
               remand. We stress that because the trial court will most likely be in
               a better position to quickly assess the merits of such a motion, leave
               should be freely granted by the appellate court if the motion is not
               frivolous on its face.

Id. at 596.

        Accordingly, the order of the trial court setting aside the initial summary judgment granted
to T J & L is reversed, and plaintiff’s complaint against T J & L is dismissed.

        We will next consider Largent’s fifth issue of whether in a nonjury trial the trial court erred
in granting judgment to Fayette County on the issue of temporary nuisance.

       Since this case was tried by the court sitting without a jury, we review the case de novo upon
the record with a presumption of correctness of the findings of fact by the trial court. Unless the
evidence preponderates against the findings, we must affirm, absent error of law. T.R.A.P. 13(d).

        A nuisance is defined as “anything which annoys or disturbs the free use of one’s property,
or which renders its ordinary use or physical occupation uncomfortable.” Oakley v. Simmons, 799
S.W.2d 669, 671 (Tenn. Ct. App 1990) (citing Caldwell v. Knox Concrete Products, Inc., 391
S.W.2d 5, 54 Tenn. App. 364 (1964)). In order to constitute a nuisance, there must be some
affirmative act on the part of those charged. Rector v. City of Nashville,23 Tenn. App. 495, 134
S.W.2d 892 (1939). Generally, negligence is not involved in nuisance actions as a nuisance is a
condition and not an act or failure to act. Cuffman v. City of Nashville, 26 Tenn.App.367, 175
S.W.2d 331 (1943). “The element of a nuisance is the wrongful use of one’s property or right to the
injury of another.” Campbell County v. Ridenour, 22 Tenn.App 250, 120 S.W.2d 1000, 1003
(Tenn. Ct. App. 1938). A temporary nuisance is an injury to property that can be corrected with the
expenditure of labor or money. Caldwell v. Knox Concrete Prod. Inc., 54 Tenn. App. 393, 391
S.W.2d 5 (1964). The measure of damages for a temporary nuisance is the injury to the value of the


                                                 -9-
use and enjoyment of the property, properly determined by the rental value of the property and to
what degree the rental value is diminished. Anthony v. Construction Products, Inc., 677 S.W.2d
4, 10 (Tenn. Ct. App. 1984).

         Largent’s entire case is predicated upon the placing of the concrete on his property without
his permission. Testimony was introduced by Largent on the one hand and by Fayette County on the
other which created a conflict in the testimony as to whether permission was granted by Largent to
Fayette County. When the resolution of the issues in a case depends upon the truthfulness of
witnesses, the trial judge, who has the opportunity to observe the witnesses in their manner and
demeanor while testifying, is in a far better position than this Court to decide those issues. McCaleb
v. Saturn Corp., 910 S.W.2d 412, 415 (Tenn. 1995); Whitaker v. Whitaker, 957 S.W.2d 834, 837
(Tenn. Ct. App. 1997). The weight, faith, and credit to be given to any witness’s testimony lies in
the first instance with the trier of fact, and the credibility accorded will be given great weight by the
appellate court. Id.; In re Estate of Walton v. Young, 950 S.W.2d 956, 959 (Tenn. 1997).

        From our review of the record, we cannot say that the evidence preponderates against the trial
court’s findings of facts, and, therefore, the judgment for Fayette County should be affirmed.

        In considering appellee’s issue for review, we have disposed of Issue No. I. Concerning
Issue No. II, we have reviewed the record concerning the question of discretionary costs and cannot
find that the trial court abused its discretion in awarding discretionary costs to T J & L Construction
Company. Accordingly, this issue is without merit.

        As to Issue No. III regarding the summary judgment entered in favor of defendant, Dement
Construction Company, we have heretofore determined that there is a final order of summary
judgment in favor of defendant, T J & L . The only allegation against Dement Construction
Company is that its liability is predicated upon the action of its alleged agent, T J & L. The principal
or master cannot, as a matter of law, be liable for the alleged negligence of his servant or agent when
it has been judicially determined that the servant was not negligent. See Cantrell v. Burnett &
Henderson Co., 187 Tenn. 552, 216 S.W.2d 307 (1948). This issue is without merit.

        Considering Issue No. IV, whether the court erred in granting partial summary judgment to
Fayette County on the issue of negligence, depends upon whether permission was granted to Fayette
County by Largent to store the concrete on the property. That issue has been judicially determined
as noted in our consideration of Issue No. V. Where there has been a judgment on a controlling issue
of fact, a plaintiff in that suit is judicially bound by such finding in the subsequent suit by such
plaintiff against even a different defendant. See Hammons v. Walker Hauling Co., 196 Tenn. 26,
263 S.W.2d 753 (1953).
        In sum, the order of the trial court setting aside the initial summary judgment granted to T
J & L Construction Company is reversed, and plaintiff’s complaint against T J & L is dismissed.
The judgments of the trial court in all other respects are affirmed in their entirety. The case is
remanded to the trial court for such further proceedings as may be necessary. Costs of the appeal
are assessed against appellant, Largent Contracting, Inc., and its surety.


                                                  -10-
__________________________________________
W. FRANK CRAWFORD, PRESIDING JUDGE, W.S.




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