                     IN THE COURT OF APPEALS OF TENNESSEE
                         WESTERN SECTION AT NASHVILLE
                  ______________________________________________

CITY OF MURFREESBORO, A                        From the Rutherford County
Municipal Corporation in                       Circuit Court, No. 37469
Rutherford County, State of                            The Honorable James L.
Tennessee,                                             Weatherford, Judge

       Plaintiff-Appellee,                            AFFIRMED AND REMANDED
                                                      C.A. No. 01A01-9704-CV-00193
COMAS MONTGOMERY,                                     Steven A. Stinson of Murfreesboro
SHIRLEY NEELY MONTGOMERY,                      K. Gregory Tucker, Of Counsel
SHERRY NEELY NUNLEY, and                       For Appellants
HOWARD SIMPKINS, as
Co-Executors of the EMMA V.                    Thomas L. Reed, Jr. and
NEELY ESTATE;                                       Jerry E. Farmer of Murfreesboro
                                                    For Appellee
      Defendants-Appellants.
____________________________________________________________________________FILED
                         MEMORANDUM OPINION1
                                                         December 19, 1997
___________________________________________________________________________

CRAWFORD, J.                                                        Cecil W. Crowson
                                                                  Appellate Court Clerk
       This is a condemnation case.         Defendants, Comas Montgomery, Shirley Neely

Montgomery, Sherry Neely Nunley, and Howard Simpkins, co-executors of the Emma V. Neely

estate, appeal the judgment of the trial court awarding possession of the property in question to

plaintiff, City of Murfreesboro. The compensation to be paid defendants has not been

adjudicated, and this appeal relates only to the right of the city to take the property.

       The city’s St. Clair Street Seniors’ Center is located at the intersection of St. Clair Street

and Walnut Street in Murfreesboro, and its property includes the better part of the north end of

a city block. Approximately half of the southern part of this same block is occupied by

Westbrook Tower, a retirement home for senior citizens. The Neely estate property at 601 North

Walnut Street is a lot fronting approximately 75 feet on Walnut and extending back along the

northern boundary of the Westbrook Tower property.

        In 1994, the senior center began considering expansion plans, and the city purchased

some parcels of property in the block in anticipation of the expansion. In December of 1994,


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         Rule 10 (Court of Appeals). Memorandum Opinion. -- (b) The Court, with the
concurrence of all judges participating in the case, may affirm, reverse or modify the actions
of the trial court by memorandum opinion when a formal opinion would have no precedential
value. When a case is decided by memorandum opinion it shall be designated
"MEMORANDUM OPINION," shall not be published, and shall not be cited or relied on for
any reason in a subsequent unrelated case.
defendant, Comas Montgomery, acting as spokesperson for the defendants approached the city’s

mayor and the city manager inquiring if the city had any interest in purchasing the subject

property. The city expressed interest at that time and wanted to agree on appraisal of the

property. Mr. Montgomery objected to the appraiser selected by the city and understood that

another appraiser would be used. Mr. Montgomery testified that he had no further contact with

the city regarding the appraisal or any other interest of the city in acquiring the property.

However, the city council minutes shortly after the contact state that the city manager informed

the city council that Mr. Montgomery called and advised him that the family had decided not to

sell the property. In the meantime, preliminary architectural work was being performed in

connection with the planned expansion, and the city had acquired a lot to the north of the Neely

property for this purpose.

       In making the preliminary assessments, it was determined that there was a need to

relocate a sewer line and that this would probably have to be done by acquisition of the Neely

property. The city manager brought this matter before the city council at its February 8, 1996,

meeting and requested council to approve condemnation of the property since the parties had

indicated that they did not want to voluntarily sell the property. Mr. Montgomery heard about

the meeting while it was in progress and immediately went to the city council chambers. He

persuaded the council to rescind its vote for condemnation and to attempt to negotiate an

acquisition by purchase. Appraisals were obtained, and the parties tried to negotiate but were

unable to agree upon an acceptable price. In the meantime, it was determined that an easement

for the sewer line would be sufficient. The defendants offered to give an easement to the city

at no cost. Later it was determined that a small parcel of land at the rear of the Neely property

was needed for the sewer line.         Subsequently, the long range planning committee for the

senior citizen center determined that the entire lot was needed for future expansion. The Neely

heirs wanted $195,000.00 for the property, but the city’s appraisals indicated the value was only

$95,000.00.

       The defendants’ attorney was allowed to speak at the city council meeting where he

raised the issues of fraud, misrepresentation and bad faith on the part of the city. At the

attorney’s request the city again agreed to delay a condemnation vote in order to see if the matter

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could be worked out by agreement. The senior citizens center long range planning commission

advised the council that time was of the essence and they needed this property for expansion

purposes. When the parties were unable to reach an agreement as to the value, the city council

voted to condemn the property.

        The condemnation complaint was filed and $95,000.00 plus was tendered as the higher

of the city’s two appraisals. After a nonjury trial confined to the issue of the taking, the trial

court entered its order awarding possession to the city. The defendants have appealed and

present five issues for review which we will now consider. The first two issues for review, as

stated in appellants’ brief, are:

                1. The trial court erred in permitting the exercise of eminent
                domain where the condemning authority has concealed the true
                purpose of the taking, made fraudulent misrepresentations, acted
                in bad faith and acted arbitrarily and capriciously.

                2. The trial court erred in determining that the City of
                Murfreesboro had identified a need for the property.

        Appellants assert that the city’s stated reason for the condemnation was a mere

subterfuge, and that the city made fraudulent misrepresentations, acted in bad faith, and acted

arbitrarily and capriciously. Apparently, these assertions are premised on the fact that the initial

proposal for condemnation only stated a need for a sewer line to cross the subject property. At

a later date, the reason for the taking was expanded by virtue of the need expressed by the senior

center’s long range planning committee. The record reflects that the architect for the property

testified concerning this need and the necessity for the expansion to include the subject property.

We have reviewed the record, which includes the transcripts of the pertinent city council

meetings, and from this review we conclude that the city did not act unfairly, that there was no

subterfuge, and what is really at issue is a question of money. The trial court found that there

was no abuse of power by the city and that there was no evidence to indicate “that the city

council acted fraudulently, arbitrarily, capriciously, or in bad faith.” The evidence does not

preponderate against the trial court’s findings, T.R.A.P. 13(d), and we concur with these

findings. In American Tel. & Tel. Co. v. Proffitt, 903 S.W.2d 309 (Tenn. App. 1995), this Court

said:

                “[B]road discretion is necessarily vested in those to whom the

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                  power of eminent domain is delegated, in determining what
                  property is necessary for the public purpose, with respect to the
                  particular route, line, or location of the proposed work or
                  improvement, and . . . the courts will not disturb their action in
                  the absence of fraud, bad faith, or gross abuse of discretion.” 26
                  Am.Jur. Eminent Domain § 113. The Tennessee Supreme Court
                  echoed this rule in Williamson Co. v. Franklin & Spring Hill
                  Turnpike Co., 143 Tenn. 647 (1920), wherein it opined, “It is
                  everywhere settled that, in the absence of a clear and palpable
                  abuse of power, the determination of the necessity for the taking
                  and what property shall be taken is not a question for the
                  judiciary, but for the legislature or the body to whom the right of
                  eminent domain is delegated by it.”

Id. at 311-312.

       The testimony in the city council minutes reflect that the senior center legitimately

determined that there is a need for the Neely property, that the city was reluctant to condemn the

property without first negotiating, and that the condemnation was authorized only when

negotiations failed. Defendants assign some sinister motive to the city simply because the long

range planning changed, creating a need for the property. The architect’s testimony explained

the process of the changes and the necessity therefor. The trial court apparently believed this

testimony. The determination of the credibility of witnesses rests in the first instance with the

trial court and will be given great weight by the appellate court. Haverlah v. Memphis Aviation,

Inc., 674 S.W.2d 297, 302 (Tenn. App. 1984).

       These issues are without merit.

       The third issue for review, as stated in appellants’ brief, is:

                  3. The trial court erred in failing to recuse as a result of the
                  appearance of impropriety and thus set aside the FINAL
                  JUDGMENT OF POSSESSION AND CONDEMNATION.

       Because of the recusal of Judge Don Ashe, the Supreme Court appointed the Honorable

James L. Weatherford to preside over this case. Judge Weatherford has a brother living in

Murfreesboro and when he came to Murfreesboro the evening before trial he had dinner with his

brother. The brother is also a member of the Murfreesboro Housing Authority. Appellants assert

that because Judge Weatherford had dinner with his brother the evening before trial and his

brother is on the Murfreesboro Housing Authority, this created an appearance of impropriety.

       We find nothing in the record to indicate that Judge Weatherford’s brother was even

remotely interested in the acquisition of the subject property. The housing authority had nothing

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to do with establishing a need for the subject property, nor did they make any effort whatsoever

to acquire the property. There is nothing in the record to indicate any impropriety on the part

of Judge Weatherford nor even an appearance of impropriety as asserted by appellants. The trial

court correctly denied the motion for recusal. This issue is totally without merit.

       The fourth issue for review, as set out in appellants’ brief, is:

               4. The trial court erred in totally precluding the Defendants from
               taking the deposition of City Attorney Tom Reed and/or from
               introducing testimony relative to the City Attorney’s Office’s
               actions relative to this condemnation.

       Appellants assert that they should have been allowed to take the deposition of the city

attorney to deal with the actions of the city attorney involving the eminent domain process. It

appears that the appellants are merely complaining about the attempts to negotiate the price for

the property, and that the city attorney seemed to indicate that it was a “waste of time” to do so.

Appellants assert that this indicates a failure to negotiate in good faith. Appellants have failed

to cite any authority to the effect that the city was required to negotiate for the purchase of the

property. The deposition testimony would not affect the judgment of the court.         Defendants

also assert that the trial court erroneously ruled concerning several evidentiary objections. Since

appellants did not set out the questions and the specific objections, we are having some difficulty

in determining exactly what appellants’ complaint is. It does appear, however, that they

complain about certain portions of Engineer Huddleston’s testimony. We have reviewed the part

of the transcript referred to, and it appears that either this witness showed a lack of knowledge

about what he was asked, or he was asked to give his impression of what the city’s intent was.

His impression of the city’s intent is irrelevant because there was no foundation laid to show that

he was authorized to act for or commit the city.

       Appellants further complain that they were not allowed to show a statement made by

Jerry Farmer. However, when the objection was made and sustained, no offer of proof was made

and we don’t know what the answer would have been; therefore, we cannot address the

objection. Home Insurance Co. v. Glen Falls Ins. Co., 675 S.W.2d 486, 488 (Tenn. App.

1984). We will not be able to consider the remaining evidentiary objections for that reason as

well. This issue is also without merit.


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       The next issue, as stated in appellants’ brief, is:

                 5. The trial court erred in denying the Appellants a stay and
                 either a very reasonable or minimal stay bond under the facts and
                 circumstances of this case.

       This Court previously entered an order on February 27, 1997, affirming the trial court on

this issue. There is nothing in the record to warrant a change of that position. This issue is

without merit.

       The judgment of the trial court is affirmed, and the case is remanded for such further

proceedings as may be necessary. Costs of the appeal are assessed against the appellants.

Appellee has requested that we declare this a frivolous appeal. Although this is very close to a

frivolous appeal, we will decline the invitation at this time.

                                                       _________________________________
                                                       W. FRANK CRAWFORD,
                                                       PRESIDING JUDGE, W.S.
CONCUR:

____________________________________
DAVID R. FARMER, JUDGE

____________________________________
HEWITT P. TOMLIN, JR.
SENIOR JUDGE




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