                   IN THE COURT OF APPEALS OF TENNESSEE
                               AT NASHVILLE


MONTGOMERY COUNTY,                    )
TENNESSEE,                            )
                                      )                     FILED
             Plaintiff/Appellee,      ) Montgomery Circuit No. C11-319
                                      )                       July 27, 1999
VS.                                   ) Appeal No. 01A01-9807-CV-00343
                                      )                    Cecil Crowson, Jr.
GEORGIA NICHOLS, et al,               )                   Appellate Court Clerk
                                      )
             Defendants/Appellants.   )


        APPEAL FROM THE CIRCUIT COURT OF MONTGOMERY COUNTY
                      AT CLARKSVILLE, TENNESSEE
                THE HONORABLE JAMES E. WALTON, JUDGE




LARRY B. WATSON
WATSON & ATKINS, P.C.
Clarksville, Tennessee
Attorney for Appellants


GREGORY D. SMITH
Clarksville, Tennessee
Attorney for Appellee




AFFIRMED & REMANDED




                                                        ALAN E. HIGHERS, J.



CONCUR:

W. FRANK CRAWFORD, P.J., W.S.

DAVID R. FARMER, J.
     Georgia Nichols, Justine Jones and Charles Nichols, both individually and as
guardian and/or conservator for Georgia Nichols (hereafter collectively referred to as “the

Defendants”), appeal from an order that granted a Rule 60 motion filed by Montgomery

County (“the County”) subsequent to an order of voluntary nonsuit. This order directed the

repayment of $101,000 that had been withdrawn from the trial court clerk by the

Defendants. For the reasons hereafter stated, we affirm.



                             Facts and Procedural History



       On January 24, 1996, the County commenced this condemnation action against

Georgia Nichols for the purpose of acquiring real property believed to be owned by Nichols,

and because “[s]aid property [was] necessary in order to meet federal regulations relating

to ‘safe flight approach paths’” to airports. Thereafter, Nichols filed an answer to the

County’s petition that admitted that “she is one of the owners of the property that is the

subject of this litigation.” In addition to responding to the County’s factual allegations,

Nichols challenged the County’s right to take the property and asserted that the County

“failed to comply with the laws of condemnation in eminent domain by failing to recite the

amount it has established as [the land’s] fair market value and by further failing to remit

that amount into Court.” Subsequently, the County filed an amended petition (pursuant to

an agreed order allowing for such filing) that added additional named defendants alleged

to be partial owners of the subject property. The County’s amended petition further alleged

the fair market value of the subject property to be $101,000. Moreover, the County paid

$101,000 to the trial court clerk. After the $101,000 had been paid to the clerk, the

Defendants filed a “request to withdrawal of funds,” which stated:

       Defendants request pursuant to Tennessee Code Annotated 29-17-701 for
       the Clerk to pay to them, without prejudice to any of their rights, the sums so
       deposited with the Clerk in this cause. The Defendants further agree to
       refund the difference between such sum and the final award in the cause if
       the final award be less than the sum paid in the Court.



The trial court granted the Defendants’ above request and entered a written order directing

“that the Clerk pay to the Defendants all sums deposited with the Clerk in this cause.”

Accordingly, the trial court clerk thereafter paid the Defendants the $101,000.



                                             2
        On January 16, 1997, after all of the above events had transpired, the County filed

a notice of voluntary nonsuit.1 Shortly thereafter, the Defendants filed a written response

to the County’s notice of voluntary nonsuit, wherein they objected to the County’s notice

of nonsuit and requested a hearing regarding the same. After such a hearing was

eventually held and argument was presented, the trial court entered an order on August

22, 1997 that ordered dismissal of the case without prejudice.2



        On February 25, 1998 (13 months after the notice of voluntary nonsuit, but only 187

days after the order of voluntary nonsuit), the County filed a motion seeking “an order that

Defendant[s] be required to return all funds submitted by [the County] to the Clerk.”

Thereafter, on March 12, 1998, the County filed a separate “Motion to Modify Nonsuit

Order ... pursuant to Tenn. R. Civ. P. 60 ....” This similar “motion to modify” again sought

“an order that Defendants return the funds deposited by [the County] with the Clerk.” The

Defendants then filed a response to the County’s motion(s) contesting said motion(s).



        On June 2, 1998, the trial court ordered the Defendants to return $101,000 to the

court clerk, after which the Defendants filed a notice of appeal. As it is the subject of some

argument on appeal, we note that the trial court’s order further stated the following:

        IT IS FURTHER ORDERED that if Defendant[s] [wish] to have a hearing
        regarding potential costs and attorney fees, related to the defense of the
        above styled cause of action, [pursuant to Tennessee Code Annotated
        section 29-17-812(b)] [they] must contact counsel for Plaintiff and the Clerk
        of this Honorable Court within thirty (30) days of this order to set a hearing
        on said matter.



        On appeal, the Defendants’ brief sets forth the following as an issue on appeal:

“Whether the trial court erred in setting aside an order of nonsuit pursuant to TRCP Rule


1. Though it has no effect on our disposition of this case on appeal, we note that the County’s brief explains
that the County’s need for condemnation of the subject property ceased to exist ( i.e., the F.A.A. changed a
prior finding on “safe flight approach zones”). Moreover, the Defenda nts’ trial court pleadings state that, after
the Cou nty filed its no tice o f volu ntary n ons uit, the Cou nty offered to purchase the subject land for the
$101,0 00 “[a]s a c ourtesy to D efenda nts,” to wh ich the D efenda nts dec lined.

2. Though the Defendants originally disputed the County’s right to a voluntary nonsuit in the trial court, they
adm it in their brief that, “[i]n the present case[,] there was no order of possession and therefore [the
Defendants] agree [the County] could properly take a nonsuit.” Cf. Ander son v. Sm ith, 521 S.W.2d 787, 791
(Tenn. 1975) (“the condemner has the right to take a nonsu it at any time p rior to the ca se being subm itted to
the trier of fact for decision, unless the condemner has taken possession of the property under court order
issued under circumstances leaving nothing to be decided by the cour t exc ept th e com pen satio n to b e paid
the owner for the land taken”).

                                                        3
60 et seq., TRCP Rule 59 and setting a hearing to determine liability and damages, when

the notice of nonsuit was filed thirteen (13) months earlier.” Aside from responding to the

Defendants’ issue, the County’s brief further raises the additional issue of whether the

order appealed from was a final order subject to an appeal as of right. See Tenn. R. App.

P. 3(a).



                                          Analysis



       Rule 60 of the Tennessee Rules of Civil Procedure establishes the following:

        60.01. Clerical Mistakes. -- Clerical mistakes in judgments, orders or other
       parts of the record, and errors therein arising from oversight or omissions,
       may be corrected by the court at any time on its own initiative or on motion
       of any party and after such notice, if any, as the court orders. ....

         60.02. Mistakes -- Inadvertence -- Excusable Neglect -- Fraud, etc. --
       On motion and upon such terms as are just, the court may relieve a party ...
       from a final judgment, order or proceeding for the following reasons: (1)
       mistake, inadvertence, surprise or excusable neglect; (2) fraud ... ,
       misrepresentation, or other misconduct of an adverse party; ... or (5) any
       other reason justifying relief from the operation of the judgment. The motion
       shall be made within a reasonable time, and for reasons (1) and (2) not more
       than one year after the judgment, order or proceeding was entered or taken.
       ....

Tenn. R. Civ. P. 60. The Defendants assert in their brief, however, “that Rule 60 is

inapplicable in that the present case contains none of the criteria necessary to invoke the

rule.” We summarily reject this contention, and find that the circumstances upon which the

County’s Rule 60 motion were based were appropriate for relief under Rule 60. We base

this finding, in part, upon the express language of Tennessee Code Annotated section 29-

17-701(a), and upon the express language set forth in the Defendants’ original request to

withdraw the $101,000. Section 29-17-701(a) states:

       (a) Whenever the state of Tennessee, its counties or municipalities, institutes
       a condemnation proceeding in any court ... to acquire any property or
       property rights, such condemner may deposit with the clerk of such court at
       the time of the filing of the petition such amount as it shall determine that the
       owner is entitled to and the owner may, if he so desires, make written
       request to the clerk to pay to him, without prejudice to any of his rights, the
       sum so deposited with the clerk, and the clerk shall pay to the owner the sum
       so deposited, provided the owner agrees to refund the difference between
       such sum and the final award in the case if the final award be less than the
       sum so paid into court or that a judgment may be entered against him in
       such case for the difference.

Tenn. Code Ann. § 29-17-701(a) (Supp. 1998) (emphasis added). The Defendants’

                                              4
withdrawal request, which was filed with the trial court, similarly stated:

         The Defendants further agree to refund the difference between such sum
         [$101,000] and the final award in the cause if the final award be less than the
         sum paid in the Court.

In this case, the “final award” for the property that was the subject of this suit was zero

dollars based upon the voluntary nonsuit that was not appealed.3 Pursuant to an earlier

interlocutory order, however, the Defendants had withdrawn $101,000 from the trial court

clerk. Therefore, the Defendants were either to refund the $101,000 (the difference

between the amount withdrawn and the final award in the case), or to have a judgment

entered against them for the $101,000. The trial court’s order that dismissed the County’s

condemnation action (the dismissal of which is not challenged or before this Court on

appeal) did not rectify this prior disposition of funds. 4



         The Defendants further assert in their brief that the County “did not file its motion

styled ‘Motion’ and ‘Motion to Modify Nonsuit Order’ until thirteen (13) months after the

notice of nonsuit .... This is beyond ... the time frame pursuant to TRCP Rule 60 ....” We

need not resolve whether the County’s motion was required to be filed “not more than one

year after the ... order ... was entered,” because, based upon the facts and circumstances

in this case, the County’s motion was filed within a reasonable time and was filed within

one year of the order of voluntary nonsuit. Contrary to the Defendants’ position, the

timeliness of a Rule 60 motion after a voluntary nonsuit should be measured from the date

of entry of the order of voluntary nonsuit, and not from the date of filing of the notice of

voluntary nonsuit. In so concluding, we are guided, in part, by this Court’s prior opinion in

Evans v. Perkey, 647 S.W.2d 636 (Tenn. App. 1982), which dealt with whether the one-

year statute of limitations for reinstituting a suit pursuant to Tennessee Code Annotated

section 28-1-105 starts from the filing of a notice of voluntary nonsuit, or from the entry of

the order of voluntary nonsuit. In Evans, we recognized that our supreme court previously

stated in Rickets v. Sexton, 533 S.W.2d 293 (Tenn. 1976):

         The lawyer for the plaintiff is the sole judge of [voluntary nonsuits] and the


3. See supra note 2.

4. We surm ise from the County’s brief that the C oun ty app aren tly did no t antic ipate that th e De fend ants wou ld
ultimately fail to repay the $101,000.

                                                           5
        trial judge has no control over it. It is not necessary that he approve the
        action of the plaintiff’s counsel by signing any order; nor may he nullify the
        rules by an order ‘disallowing’ the nonsuit. All that is required to dismiss prior
        to the trial, in the absence of the existence of any of the exceptions [set forth
        in Rule 41], is the filing of a written notice of dismissal.

Evans, 647 S.W.2d at 640 (quoting Rickets, 533 S.W.2d at 294). After quoting this

language from Rickets, however, this Court in Evans went on to state:

        At first blush the reading of the [first] sentence quoted above would indicate
        that nothing more than the written notice is necessary to finalize the case.
        However, this statement of the court is dicta and not necessarily pertinent to
        the Rickets case .... In Rickets the court was concerned with the right of a
        party to take a voluntary nonsuit and the lack of power of the court to deprive
        him of that right. We construe the Rickets court to be saying that the plaintiff
        in that case had done all that was required to be done when he gave written
        notice of his intention to take a nonsuit. It was not necessary for the court
        to grant permission or enter an order permitting it to be done. However, we
        do not find the court to be saying that a judgment or decree need not be
        entered for final adjudication of a case.

647 S.W.2d at 640-41. As such, we concluded in Evans that “the one-year statute of

limitations ran from the date of the entry of the order of the court and not from the date of

filing the notice of nonsuit.” Id. at 641. Similarly, as we stated above, the timeliness of a

Rule 60 motion after a voluntary nonsuit should be measured from the date of entry of the

order of voluntary nonsuit, and not from the date of filing of the notice of voluntary nonsuit.5



        In summary, we conclude that, based upon the facts and circumstances of this

case, the trial court did not abuse its discretion by ordering the Defendants to repay the

$101,000 that was paid to them.



        Lastly, we must address the County’s contention that the order appealed from was

not a final order subject to an appeal as of right. See Tenn. R. App. P. 3(a). We disagree

with this contention, as it is based upon the false premise that “[t]he Trial Court’s last order,

dated/filed June 2, 1998 specifically sets another hearing date in this case in the order

itself.” The trial court’s June 2, 1998 order does not set another hearing date. It simply

states as dicta, “if Defendant[s] wish to have a hearing regarding potential costs and


5. This is, of course, assuming that the order of voluntary nonsuit does not expressly provide that it is to be
effective as of the date the notice of appeal was filed. No such provision was set forth in the trial court’s order
in this case. It should be noted, however, that we express no opinion herein as to the propriety of any such
retroactive order. But cf. Snell v. Leffew, 558 S.W.2d 849 (Tenn. App. 1977) (finding that the lower court had
been without authority to make an order of voluntary nonsuit effective on an earlier date, but reasoning that
the lower court was without such authority because the plaintiff had only orally provided notice of voluntary
non suit on the earlier date and had not complied with Rule 41.01 by filing a written notice of voluntary nonsuit).

                                                        6
attorney fees ... [pursuant to Tennessee Code Annotated section 29-17-812(b)6] [they]

must contact counsel for [the County] and the Clerk of this Honorable Court within thirty (30

days of this order to set a hearing on said matter.” We have not been cited to any pleading

in the record, however, wherein the Defendants previously asserted any such claim for

costs and expenses, nor have we found any such asserted claim upon review of the

record. Therefore, the trial court’s comments simply reflected that the trial court might

entertain such a claim, but only if it were thereafter asserted within thirty days. We note,

however, that the County has maintained that it “does not oppose a hearing on reasonable

attorney fees or reasonable expended costs relating to Defendants’ actions defending ...

this case.”




                                                Conclusion



        Accordingly, we hereby affirm the trial court and remand this case to the trial court

for any further proceedings as may be deemed necessary. Costs on appeal are taxed to

the Defendants, for which execution may issue if necessary.




                                                                      HIGHERS, J.



CONCUR:



6. Tennessee Code Annotated section 29-17-812(b) provides:

       [T]he state court having jurisdiction of a proceeding initiated by any person, agency or other
       entity to acquire real property by conde mna tion shall tax th e bill of costs prepared by the clerk
       against the condemner and shall award the owner of any right, or title to, or interest in, such
       real property su ch sum as will in the op inion of the c ourt reimburse such owner for the
       own er’s reas ona ble disbu rsem ents and e xpe nse s, inc luding reas ona ble at torne y, appraisal
       and engineering fees, actually incurred because of con demnation proce edings, only if:
                 (1) the final judgment is that the acquiring party cannot acquire the real property by
       condemnation; or
                 (2) T he pr oce eding is aba ndo ned by the acqu iring p arty.

Tenn. Code A nn. § 29-17-812(b) (Supp. 199 8).

                                                        7
CRAWFORD, P.J., W.S.




FARMER, J.




                       8
