04/30/2025

IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE
January 16, 2025 Session

CITY OF PIGEON FORGE, TENNESSEE v. RLR INVESTMENTS, LLC

Appeal from the Circuit Court for Sevier County

No. 15-CV-372-I Carter S. Moore, Judge

No. E2023-01802-COA-R3-CV

In this condemnation action, the trial court entered an order of possession granting to the
petitioner city two greenway easements and two construction easements over two tracts of
land owned by the respondent corporation. In the order of possession, the court found that
the city’s taking was for the public purpose of the city’s greenway project. The corporation
filed two successive motions for summary judgment, claiming that because the taking was
partially for a private purpose, it violated the Fifth Amendment Takings Clause of the
United States Constitution and Article I, Section 21 of the Tennessee Constitution. The
corporation averred that the order of possession required the city to construct parking
spaces on one of the corporation’s tracts to replace parking spaces taken from the other
tract and that this would yield only a private benefit. The corporation also asserted that the
city had abandoned its taking by failing to construct the replacement parking despite the
completion of the greenway. The trial court denied both motions for summary judgment,
determining that the order of possession had not required the city to build replacement
parking and that no abandonment had occurred. Following a jury trial regarding
compensation, the trial court entered a judgment approving the jury’s monetary award to
the corporation with prejudgment interest. The corporation has appealed. Discerning no
reversible error, we affirm. We deny the corporation’s request for an award of costs and
attorney’s fees on appeal.

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

Affirmed; Case Remanded

THOMAS R. FRIERSON, II, J., delivered the opinion of the court, in which D. MICHAEL
SWINEY, C.J., and KRISTI M. DAVIS, J., joined.

Gregory C. Logue, Knoxville, Tennessee, and Anthony C. White and Thomas M. Ritzert,
Cleveland, Ohio, for the appellant, RLR Investments, LLC.
Brian R. Bibb, Knoxville, Tennessee, and Nathan D. Rowell, Sevierville, Tennessee, for
the appellee, City of Pigeon Forge, Tennessee.

OPINION

I. Factual and Procedural Background

The petitioner, the City of Pigeon Forge (“the City”), filed a petition for
condemnation on June 4, 2015, naming RLR Investments, LLC (“RLR”), and The
Provident Bank as respondents. Relying on Tennessee’s eminent domain statutory scheme,
the City sought “to acquire certain property rights for greenway easement” along the Little
Pigeon River and asserted that the property rights sought were for a public purpose. The
petition involved two tracts of improved real property, both owned by RLR in fee simple.
According to undisputed facts subsequently filed by RLR, the first tract is “a hotel property
used as a private resort for RLR’s employees” (“the Hotel Property”), and the second tract
“is adjacent to the Hotel Property and contains a duplex, parking area, and open green
space” (“the Duplex Property”).1 The City requested a permanent greenway easement
traversing each tract, comprised of 2,138 square feet over the Hotel Property and 1,870
square feet over the Duplex Property. The City also requested a temporary construction
easement consisting of 1,786 square feet over the Hotel Property and a temporary
construction easement consisting of 5,210 square feet over the Duplex Property. The City
stated that it had determined the amount to which the respondents would be entitled as
compensation to be $131,450.00 and had deposited this amount with the trial court clerk.

On July 2, 2015, RLR filed an “Objection to the Right to Take and Answer,”
asserting that Tennessee’s eminent domain statutory scheme did not authorize the City to
condemn the property sought for use as a greenway. RLR also maintained that the amount
deposited by the City with the court clerk was inadequate to compensate for the property
if the petition were granted. The City subsequently amended its condemnation petition to
add further statutory citations concerning eminent domain.

Regarding the procedure involved in an eminent domain action, Tennessee Code

Annotated § 29-17-104(a)(2)(B) (West July 9, 2012, to current) provides that if the right
to take is challenged in a timely filed answer, “the court shall promptly determine, as a
matter of law, whether the condemner has the right to take the property or property rights
sought to be condemned.” The statute further provides: “If the court determines that the

1
In naming The Provident Bank as a respondent, the City averred that RLR’s interest in the Hotel Property
was subject to an assignment of leases and rents held by The Provident Bank. However, the trial court
subsequently entered an agreed order dismissing The Provident Bank from this action and noting that the
lien the bank held had been released.

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condemner has the right to take, the condemner shall thereupon have the right to take
possession thereof.” Id. The statute also provides for bifurcated proceedings, culminating
in a trial addressing damages after the issue of possession has been determined. See Tenn.
Code Ann. § 29-17-104(b) (West July 9, 2012, to current) (“When a condemner has the
right to take possession of property or property rights, if necessary, the court shall issue a
writ of possession to the sheriff of the county to put the condemner in possession. The writ
may be issued prior to a trial on the damages.”).

Following an evidentiary hearing, the trial court entered an “Order of Possession”

in favor of the City on May 31, 2016, granting the requested easements.2 Diagrams of the
tracts with the respective easements noted were attached as collective “Exhibit A” to the
Order of Possession. The court also incorporated a transcript of its findings made from the
bench, wherein the court stated:

The Court is satisfied that the city has carried its burden of proof that the
Greenway project is for public purpose and convenience to the public, that
it[’s] [a] proper exercise of the eminent domain powers of the city; and the
Court will grant the city possession.

The princip[al] arguments revolve around certifications. The city says

it has all applicable certifications in place. Any project, this one in particular
because there are regulations that must be complied with, must be completed
and finished in accordance with all applicable state, Federal regulations and
the city’s own ordinances. That’s the city’s burden. That’s the city’s
responsibility as it would [be] if the city were simply building a sidewalk.
The same principles apply, and it is the city’s responsibility to carry out all
its activity in accordance with those regulations. That does not, in the Court’s
opinion, have anything to do with the city’s right to take and proceed.

The Court has heard and I don’t know the specific numbers, but a
large number of tracts have already been taken on either end, either side of
Tracts 4 and 5 and the Greenway’s construction has been commenced on
those properties. Th[ese are] the last remaining tracts within this project. In
order to complete the project, which the Court finds is for a public purpose,
the city needs these two tracts.

Much of the arguments raised, particularly with respect to the parking

lots, have to do with issues perhaps of damages, the amount of compensation.
2
In the Order of Possession, the trial court noted that the City had withdrawn a request for a wastewater
reuse easement that had been initially included in the City’s petition.

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The City recorded the Order of Possession with the Sevier County Register of Deeds on
May 31, 2016.

RLR filed a timely motion to alter or amend the Order of Possession, stating
expressly that the motion was filed pursuant to Tennessee Rule of Civil Procedure 59.04.
In the heading of the motion, RLR also termed it a motion to “reconsider.” RLR relied on
the certification arguments described by the trial court above. The parties subsequently
filed a joint notice stating that negotiations were ongoing and requesting that the trial court
not set the Rule 59.04 motion for hearing. On January 8, 2018, the trial court entered an
agreed order withdrawing RLR’s motion to alter or amend.3

On May 30, 2018, RLR filed a motion to enforce the terms of the Order of
Possession. RLR asserted that in accordance with the Order of Possession, the City had
demolished RLR’s six parking spaces on the Hotel Property to make way for the greenway.
However, the City had not commenced construction of replacement parking spaces on the
Duplex Property, which RLR claimed was required by the temporary construction
easement granted over that tract in the Order of Possession. RLR alleged that the City was
disregarding this portion of the order. RLR requested that the trial court “order the City to
comply with the terms of the Order of Possession, including but not limited to, by
constructing the replacement parking depicted in Exhibit A to the Order of Possession on
the Duplex Property.”

The City filed a response, denying that it had abandoned any portion of the property
rights granted to it by the Order of Possession. The City alleged that RLR had “repeatedly
stated that [the City] was substantially damaging its second tract of property by placing
parking on it.” The City further alleged that RLR had taken the position that the City had
no right to construct the parking on the Duplex Property. The City stated that it had
“determined that it would not construct the parking on [RLR’s] adjoining lot because of
the significant and continuing concerns raised by [RLR].” The City concomitantly filed a
motion requesting that the trial court declare the parties’ rights and responsibilities under
the Order of Possession and “close[] the temporary construction easement originally
granted for construction of the parking at issue.” RLR filed a response, asserting that the
City was attempting to unilaterally modify the Order of Possession.

Following a hearing conducted in July 2018, the trial court entered an order on
September 4, 2018, finding that the greenway project had been completed, declaring that
the “temporary construction easement at issue [was] terminated,” and determining that
3
Judge Richard R. Vance had been presiding over the case at the time the trial court entered the Order of
Possession. Following Judge Vance’s death in December 2017, this case was subsequently assigned to
Judge Moore.
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there had been “no abandonment of the project through the City not constructing
replacement parking for the six (6) parking spaces taken from one of the lots owned by
[RLR].” The court further determined:

[T]he Court does not find that [the City] was specifically ordered to construct
the parking at issue on property owned by [RLR], and the Court further does
not find that to be for a public purpose. The Court finds that the public
purpose in the taking at issue was construction of the Greenway itself.

On March 11, 2019, RLR filed a motion for summary judgment, alleging that (1)
the City had partially abandoned its condemnation action and (2) the condemnation petition
was “improperly based, in part, on taking of property not necessary nor for a proper public
purpose.” RLR also requested costs and fees pursuant to Tennessee Code Annotated § 29-
17-912(b)(2)(B). The City filed a response on May 10, 2019, contending that RLR had
filed its summary judgment motion improperly because the trial court had already ruled on
the issues raised by RLR in the court’s Order of Possession and in its September 2018
order. The City maintained that the proper vehicle for RLR to contest the Order of
Possession had been the Rule 59.04 motion previously filed but that RLR had voluntarily
withdrawn that motion. The City requested sanctions against RLR for the filing of a
“baseless” summary judgment motion. RLR filed a reply, asserting that new facts had
arisen since entry of the Order of Possession because during the July 2018 hearing, the City
had admitted that the temporary construction easements were not for a public purpose
because the replacement parking would have privately benefited RLR.

On June 17, 2019, the trial court conducted a hearing concerning RLR’s summary
judgment motion, as well as various discovery and pretrial motions. The court entered an
order on October 15, 2019, and, as pertinent here, denied RLR’s summary judgment
motion. The court found that RLR’s “request to dismiss [the City’s] action because one of
the temporary construction easements taken by [the City] was not for a public purpose”
“would yield a draconian result.” The court attached the entire hearing transcript to its
order and incorporated its findings of fact and conclusions of law rendered from the bench.
These findings and conclusions as to the summary judgment motion were:

The Court finds that the Court’s going to side with the City of Pigeon Forge
in this matter. Regardless of whether it was improper or not to have – to
construct a parking lot, because I don’t think anybody’s arguing that it was
proper. If that was the City’s position, that was known from the onset of this
matter. The greenway itself is finished at this point. At this juncture, the
Court’s not going to cause an – and you’re saying there is no parade of
horribles. There may not be, but I’ve seen – I’ve been surprised. So, I mean,
if I were to turn this over and give [RLR] possession of the greenway right
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 now, it would be theirs and they could do what they want with it until the
City filed something, and I don’t think that’s appropriate.

And I want [RLR] to be compensated to the fullest, which they’re

going to have [an] opportunity to do whether this settles or we go to trial on
it. Because, I mean, the City will have to pay [RLR] for the property the
greenway’s on, for taking the property that the greenway is – or the greenway
is not on, for the time period they took it and any incidental damages. So for
that reason, [RLR’s] motion for summary judgment is dismissed.

After various proceedings related to the upcoming trial regarding damages

compensation, RLR filed a “Renewed Motion for Summary Judgment” on April 29, 2022.
In its renewed motion, RLR elucidated the same bases for summary judgment as stated in
its initial motion. RLR attached depositions from March 2022 that it had not previously
filed, one given by Earlene Teaster, City Manager for the City, and the other by Lanny
Goodwin, the Director of Parks and Recreation for the City. RLR averred that Ms.
Teaster’s testimony supported the position that it was an improper use of eminent domain
power to take private property to create parking spaces that would benefit other private
property. RLR posited that Mr. Goodwin’s testimony indicated that the City had included
replacement parking within its grant submission materials to obtain funds for the greenway
project and then had not constructed the replacement parking.

The City filed a response opposing RLR’s renewed summary judgment motion on
June 22, 2022, arguing that RLR was seeking “judgment as a matter of law on the same
legal grounds and with the same justifications that were rejected on at least three previous
occasions.” The City requested costs and attorney’s fees to compensate it for defending
against what it termed a frivolous motion. The City attached to its response, inter alia, a
copy of its “Greenway Plan and Profile” and an excerpt from a deposition given by RLR’s
Director of Properties, Mark P. Sherman, in April 2022. Mr. Sherman had testified that
RLR desired replacement parking but “not on the duplex tract necessarily.” Mr. Sherman
clarified that he did not want replacement parking that limited RLR’s use of the Duplex
Property.

On June 29, 2022, the trial court conducted a hearing on RLR’s renewed motion for
summary judgment, as well as pretrial motions concerning the damages trial. In an order
entered on July 26, 2022, the court denied RLR’s renewed summary judgment motion upon
determining that “the property interests sought in the Petition for Condemnation were for
a proper public purpose” and that the City had “not abandoned any of the interests it was
granted in the May 31, 2016 Order of Possession.” The court stated that it was relying on
its findings in the Order of Possession, the September 2018 order terminating the

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construction easement over the Duplex Property, and the October 2019 order denying
RLR’s initial summary judgment motion.

On August 9, 2022, RLR filed a motion requesting permission for interlocutory

appeal, pursuant to Tennessee Rule of Appellate Procedure 9, which the City opposed. In
an order entered on December 2, 2022, the trial court granted RLR’s motion, stating that
the “central disputed issues” were “whether the City of Pigeon Forge abandoned a part of
the taking in this action, and whether the City of Pigeon Forge engaged in an unlawful
private taking of a portion of the property owned by RLR.” However, this Court denied
RLR’s Rule 9 application in an order entered on January 23, 2023. RLR then filed a Rule
9 application with the Tennessee Supreme Court, which the Supreme Court denied in an
order entered on April 17, 2023.

Following various pretrial evidentiary matters, the trial court tried the compensation
portion of the case before a jury on November 13 to 16, 2023.4 The trial court entered an
“Order of Judgment” on December 6, 2023, approving the jury’s verdict regarding
compensation due to RLR. The court detailed the judgment as follows:

The jury gave a judgment in the amount of $276,931.62 finding just

compensation for the fair cash value of the land taken to be $131,511.87 and
incidental damages due to the landowner to be $145,419.75. The jury
credited $0.00 for special benefits. Further, pursuant to the terms of Tenn.
Code Ann. § 29-17-913, [RLR] is awarded prejudgment interest at the rate
of 5.5% on the amount of the judgment in excess of that on deposit with the
Clerk of Court equal to $59,978.29 through November 27, 2023 and an
additional $21.92 per day between November 27, 2023 and the date of entry
of this Order.

RLR timely appealed, raising issues concerning the trial court’s entry of the Order
of Possession and denial of RLR’s summary judgment motions. Neither party has raised
an issue regarding the jury verdict and compensation awarded to RLR. On January 5, 2024,
the trial court entered an agreed order directing the trial court clerk to invest the funds
deposited with the clerk in an interest-bearing account. The court noted that the City had
deposited a total judgment amount of $337,107.19, which included the interest awarded.

4
Prior to trial, RLR filed a complaint in the United States District Court for the Eastern District of
Tennessee, wherein RLR contended that the Order of Possession violated the Fifth Amendment of the
United States Constitution. The federal district court held that it lacked subject matter jurisdiction to review
the state court order, and the United States Sixth Circuit Court of Appeals affirmed. See RLR Invs., LLC v.
City of Pigeon Forge, Tenn., 4 F.4th 380, 388 (6th Cir. 2021) (“By asking a federal court to declare a state-
court order unconstitutional and prevent its enforcement, RLR impermissibly appealed the state court’s
order to the federal district court.”).
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 II. Issues Presented

RLR presents two issues on appeal, which we have restated slightly as follows:

1. Whether the trial court erred by determining that the City’s plan to
take private property to construct private parking spaces for RLR’s
exclusive use and benefit was constitutional.

2. Whether the trial court erred by allowing the City to abandon its
interest in the construction easement granted in the Order of
Possession without providing RLR the statutory costs and fees.

The City has raised three additional issues, which we have similarly restated:5

3. Whether the trial court erred by declining to reconsider its prior

rulings, and whether RLR has waived consideration on appeal of the
trial court’s prior rulings by failing to properly preserve the record.

4. Whether the trial court properly determined that the grant of property
interests to the City in the Order of Possession was supported by a
constitutionally sufficient public purpose.

5. Whether the trial court properly determined that the City had not
abandoned its condemnation action.

III. Standard of Review

In this bifurcated action, the issues raised on appeal concern the trial court’s finding
that the City was properly exercising the power of eminent domain and the trial court’s
denial of RLR’s motions for summary judgment. Whether the power of eminent domain
has been exercised properly is a question of law, which we review “de novo with no

5
The City also raises a fourth issue regarding whether RLR waived all issues on appeal by failing to
properly cite to the record. See Tenn. R. App. P. 27(a) (6)-(7) (requiring “appropriate references to the
record” in the statement of facts and argument sections of an appellant’s brief); Tenn. Ct. App. R. 6(b)
(providing that “[n]o complaint of or reliance upon action by the trial court” and “[n]o assertion of fact”
will be considered on appeal without specific references to the record). In its principal brief, RLR
repeatedly cited to an appendix that was not included with the brief rather than to the appellate record.
However, two days after the City filed its responsive brief, RLR filed an unopposed motion requesting that
it be allowed to file a “corrected brief.” This Court granted the motion, and in RLR’s corrected brief, the
citations to a phantom appendix have been substituted with appropriate citations to the record. The City’s
issue concerning RLR’s record citations is therefore pretermitted as moot.
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presumption of correctness afforded the trial court’s conclusions.” Metro. Gov’t of
Nashville & Davidson Cnty. v. Allen Family Trust, No. M2008-00886-COA-R3-CV, 2009
WL 837731, at *4 (Tenn. Ct. App. Mar. 27, 2009) (citing Pickler v. Parr, 138 S.W.3d 210,
213 (Tenn. Ct. App. 2003)).

The grant or denial of a motion for summary judgment is likewise a matter of law,
which we review de novo with no presumption of correctness. See Rye v. Women’s Care
Ctr. of Memphis, MPLLC, 477 S.W.3d 235, 250 (Tenn. 2015); Dick Broad. Co. of Tenn. v.
Oak Ridge FM, Inc., 395 S.W.3d 653, 671 (Tenn. 2013) (citing Kinsler v. Berkline, LLC,
320 S.W.3d 796, 799 (Tenn. 2010)). As such, this Court must “make a fresh determination
of whether the requirements of Rule 56 of the Tennessee Rules of Civil Procedure have
been satisfied.” Rye, 477 S.W.3d at 250. As our Supreme Court has explained concerning
the requirements for a movant to prevail on a motion for summary judgment pursuant to
Tennessee Rule of Civil Procedure 56:

[W]hen the moving party does not bear the burden of proof at trial, the
moving party may satisfy its burden of production either (1) by affirmatively
negating an essential element of the nonmoving party’s claim or (2) by
demonstrating that the nonmoving party’s evidence at the summary judgment
stage is insufficient to establish the nonmoving party’s claim or defense. We
reiterate that a moving party seeking summary judgment by attacking the
nonmoving party’s evidence must do more than make a conclusory assertion
that summary judgment is appropriate on this basis. Rather, Tennessee Rule
56.03 requires the moving party to support its motion with “a separate
concise statement of material facts as to which the moving party contends
there is no genuine issue for trial.” Tenn. R. Civ. P. 56.03. “Each fact is to
be set forth in a separate, numbered paragraph and supported by a specific
citation to the record.” Id. When such a motion is made, any party opposing
summary judgment must file a response to each fact set forth by the movant
in the manner provided in Tennessee Rule 56.03. “[W]hen a motion for
summary judgment is made [and] . . . supported as provided in [Tennessee
Rule 56],” to survive summary judgment, the nonmoving party “may not rest
upon the mere allegations or denials of [its] pleading,” but must respond, and
by affidavits or one of the other means provided in Tennessee Rule 56, “set
forth specific facts” at the summary judgment stage “showing that there is a
genuine issue for trial.” Tenn. R. Civ. P. 56.06. The nonmoving party “must
do more than simply show that there is some metaphysical doubt as to the
material facts.” Matsushita Elec. Indus. Co. [v. Zenith Radio Corp.], 475
U.S. [574,] 586, 106 S. Ct. 1348 [(1986)]. The nonmoving party must
demonstrate the existence of specific facts in the record which could lead a
rational trier of fact to find in favor of the nonmoving party. If a summary
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 judgment motion is filed before adequate time for discovery has been
provided, the nonmoving party may seek a continuance to engage in
additional discovery as provided in Tennessee Rule 56.07. However, after
adequate time for discovery has been provided, summary judgment should
be granted if the nonmoving party’s evidence at the summary judgment stage
is insufficient to establish the existence of a genuine issue of material fact for
trial. Tenn. R. Civ. P. 56.04, 56.06. The focus is on the evidence the
nonmoving party comes forward with at the summary judgment stage, not on
hypothetical evidence that theoretically could be adduced, despite the
passage of discovery deadlines, at a future trial.

Rye, 477 S.W.3d at 264-65. Pursuant to Tennessee Rule of Civil Procedure 56.04, the trial
court must “state the legal grounds upon which the court denies or grants the motion” for
summary judgment, and our Supreme Court has instructed that the trial court must state
these grounds “before it invites or requests the prevailing party to draft a proposed order.”
See Smith v. UHS of Lakeside, Inc., 439 S.W.3d 303, 316 (Tenn. 2014). “Whether the
nonmoving party is a plaintiff or a defendant—and whether or not the nonmoving party
bears the burden of proof at trial on the challenged claim or defense—at the summary
judgment stage, ‘[t]he nonmoving party must demonstrate the existence of specific facts in
the record which could lead a rational trier of fact to find in favor of the nonmoving party.’”
TWB Architects, Inc. v. Braxton, LLC, 578 S.W.3d 879, 889 (Tenn. 2019) (quoting Rye,
477 S.W.3d at 265).

IV. Trial Court’s Prior Rulings

The City asserts that on appeal, RLR “specifically challenges only the Trial Court’s
entry of the Order of Possession and denial of its April 29, 2022 Motion for Summary
Judgment.” The City cites this statement in RLR’s principal brief:

Upon entering the final order of judgment incorporating [the jury’s]

verdict, the interlocutory judgments of the Trial Court were made final and
appealable, including its decisions to grant the Order of Possession and deny
RLR’s Motion for Summary Judgment on the ground that the taking was for
a public purpose and that the City did not improperly abandon its taking. As
a matter of right, RLR now appeals these determinations.

The City further asserts that RLR made the “curious choice” not to challenge the September
2018 order wherein the trial court denied RLR’s motion to enforce the terms of the Order
of Possession, declared the construction easement over the Duplex Property to be
terminated, and found that no abandonment had been committed by the City. Upon careful

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review, we disagree with the City’s characterization of RLR’s challenge to the trial court’s
rulings.

To delineate the pertinent procedural history, the trial court entered the May 2016
Order of Possession upon determining that the greenway project was for a public purpose
and that it constituted a proper exercise of the City’s eminent domain authority. RLR
timely filed a Rule 59.04 motion to alter or amend, which was subsequently withdrawn by
agreement of the parties. In May 2018, RLR filed its motion to enforce the Order of
Possession, arguing for the first time that the City had abandoned the construction easement
over the Duplex Property, and thus had partially abandoned the condemnation proceeding,
by failing to construct replacement parking. In its September 2018 order, the trial court
denied RLR’s motion to enforce upon determining that (1) the Order of Possession had not
required the construction of replacement parking, (2) the greenway project had been
completed, and (3) the City had not abandoned its condemnation proceedings. The court
declared the construction easement at issue to be terminated.

RLR filed its first motion for summary judgment in March 2019 on the bases of
partial abandonment and an improper private purpose for a portion of the condemnation
action. In its October 2019 order, the trial court denied RLR’s first summary judgment
motion, emphasizing its previous finding that the greenway project had been completed.
RLR filed its renewed motion for summary judgment in April 2022, arguing the same bases
for summary judgment but attaching new deposition testimonies that had been given by
City officials. In July 2022, the court entered its order denying the renewed summary
judgment motion, reiterating its determinations that the property interests sought by the
City were for “a proper public purpose” and that no abandonment had occurred.

The trial court expressly stated in its July 2022 order denying the renewed summary
judgment motion that it was relying upon and incorporating its findings from (1) the May
2016 Order of Possession, (2) the September 2018 order denying the motion to enforce and
declaring the construction easement over the Duplex Property terminated, and (3) the
October 2019 order denying the first summary judgment motion. Therefore, we determine
that the court’s findings in these prior rulings are properly reviewable as part of the court’s
findings in the July 2022 order. See, e.g., State ex rel. Harman v. Trinity Indus., No.
M2022-00167-COA-R3-CV, 2023 WL 3959887, at *7 (Tenn. Ct. App. June 13, 2023)
(rejecting the appellant’s argument that the trial court had improperly incorporated findings
from a prior dismissal order by reference into its final order of dismissal when the prior
order was contained in the record). Pursuant to Tennessee Rule of Civil Procedure 56.04,
the trial court was required to “state the legal grounds upon which the court denie[d] or
grant[ed]” the summary judgment motion. Here, the trial court satisfied this requirement
in part by incorporating its prior rulings. We therefore determine that in raising issues

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concerning the trial court’s findings in the July 2022 order, RLR sufficiently challenged
the court’s findings on those issues in the court’s prior incorporated rulings as well.

As an additional procedural argument, the City contends that although the Order of
Possession was an interlocutory order, it “constitute[d] a final decision on the merits of the
first stage of the bifurcated proceedings” and should have been challenged via a Tennessee
Rule of Civil Procedure 59.04 motion to alter or amend within thirty days of the order’s
entry. While not overtly arguing that RLR’s motions for summary judgment were untimely
challenges to the Order of Possession, the City does argue that this Court should treat the
renewed motion for summary judgment as a motion to alter or amend and thus review the
trial court’s decision to deny the motion under an abuse of discretion standard. See Stricklin
v. Stricklin, 490 S.W.3d 8, 11 (Tenn. Ct. App. 2015) (“On appeal, we review a trial court’s
decision regarding a motion to alter or amend a judgment under an abuse of discretion
standard.”).

RLR responds that “[w]hile a Rule 59.04 motion may be used to challenge an Order
of Possession, it is not the exclusive manner in which a party can challenge the trial court’s
judgment.” RLR posits that a possession order could be challenged at any point prior to
entry of the final order in a condemnation proceeding. We agree with RLR on this point.
This Court has determined that despite the bifurcated nature of condemnation proceedings,
an order of possession may not be declared a final order under Tennessee Rule of Civil
Procedure 54.02 because a possession order does not “dispose of an entire claim or party
as required by that rule.” See Town of Collierville v. Norfolk S. Ry. Co., 1 S.W.3d 68, 70
(Tenn. Ct. App. 1998). In Collierville, the plaintiff town sought easements over railroad
tracks via eminent domain. 1 S.W.3d at 69. The trial court granted orders of possession
to the town after conducting a hearing based on the parties’ pleadings and affidavits but
without conducting an evidentiary hearing. Id. The court certified the orders of possession
as final, pursuant to Rule 54.02, and the defendant railway company appealed, arguing that
the trial court had erred by failing to conduct an evidentiary hearing. Id. Determining that
the possessory order could not be considered final due to the outstanding issue of damages,
this Court elected to treat the appeal as interlocutory, pursuant to Tennessee Rule of
Appellate Procedure 9, in the interest of judicial economy. Id. at 71; see also Alcoa Dev.
& Hous. Auth. v. Monday, No. 196, 1991 WL 12291, at *1 (Tenn. Ct. App. Feb. 7, 1991)
(determining that the trial court improperly certified an order of possession as final under
Rule 54.02 and treating the appeal as interlocutory).

In support of its argument that the trial court’s denial of RLR’s renewed summary
judgment motion should be treated as a denial of a Rule 59.04 motion to alter or amend,
the City relies on this Court’s decision in Metro. Dev. & Hous. Agency v. Eaton, 216
S.W.3d 327 (Tenn. Ct. App. 2006). In Eaton, the defendant landowners attempted to
perfect an interlocutory appeal and then an extraordinary appeal from the trial court’s
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possession order that had vested title over the landowners’ property to the plaintiff agency
via eminent domain. Eaton, 216 S.W.3d at 334. The trial court denied the landowners’
application for an interlocutory appeal, filed pursuant to Tennessee Rule of Appellate
Procedure 9, and this Court denied the landowners’ application for an extraordinary appeal,
filed pursuant to Tennessee Rule of Appellate Procedure 10. Id. Upon the agency’s
subsequent motion to alter or amend, the trial court amended the possession order to add
provisions based on redevelopment plan objectives that had been submitted by the agency
and that the landowners objected to as infringing on their property development rights. Id.
at 334-35. After the trial court had entered a final judgment approving a jury verdict
awarding damages to the landowners, and approximately four years after entry of the
original possession order, the landowners filed a Rule 59.04 motion to alter or amend the
trial court’s judgment, challenging both the original and the amended possession orders.
Id. at 329-31. Upon the trial court’s denial of the landowners’ Rule 59.04 motion, the
landowners appealed to this Court. Id. at 329. Determining that in the Rule 59.04 motion,
the landowners had “simply sought to relitigate matters that had already been adjudicated,”
this Court concluded that the trial court had not abused its discretion by denying the motion.
Id. at 343.

Here, the City states that the Eaton Court “analyzed [the landowners’] motions to
reconsider prior rulings under Tenn. R. Civ. P. 59” with an abuse of discretion standard.
The City urges that this Court should conclude that any motion for summary judgment filed
by RLR “after adjudication of the Order of Possession was, in substance, a motion to alter
or amend subject to the standards of Rule 59.04.” We disagree. We find Eaton to be
procedurally distinguishable from the instant action. The Eaton landowners appealed from
the trial court’s denial of a Rule 59.04 motion, necessitating appellate review under the
discretionary standard provided by that rule. See Eaton, 216 S.W.3d at 343. Here, the trial
court treated RLR’s “renewed” summary judgment motion as a motion for summary
judgment and not as a motion to alter or amend the Order of Possession.

In a pretrial hearing conducted on September 5, 2023, the City’s counsel announced

that two of the City’s motions in limine were unopposed, stating the following:

The first two basically was just to confine at the trial the issue of valuation.
There will be no proof on public use or public purpose, no proof on
abandonment. The City understands RLR has asserted those arguments.
Those are preserved for appeal. We expect those to be litigated after trial.

RLR’s counsel agreed that the issues of public use and abandonment would not be
presented at trial. The court then stated:

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 I’ve read the motions and the responses. That makes sense. I mean,
I ruled on those. That’s for me, not the jury. And they absolutely have the
right to raise that on appeal if it goes that far. But I don’t think it’s
appropriate for jury trial. But their rights need preserved. So we’re all in
one accord on that.

Counsel for both parties agreed with no objection voiced by the City concerning RLR’s
right to appeal the trial court’s prior rulings on the issues of public use and abandonment.

The culmination of those prior rulings was the trial court’s denial of RLR’s renewed
motion for summary judgment, which included the incorporation of the court’s findings in
the Order of Possession, the order denying RLR’s motion to enforce, and the order denying
RLR’s first summary judgment motion. The renewed summary judgment motion was
based in part on facts not in evidence at the time of the condemnation hearing, namely the
City’s decision not to construct replacement parking and the deposition testimonies given
by Ms. Teaster and Mr. Goodwin. We discern no error in the trial court’s treatment of the
renewed motion as one for summary judgment. Accordingly, we will review the trial
court’s denial of the motion under the summary judgment standard of review. The City is
not entitled to relief on this issue.

V. Preservation of Condemnation Hearing Record

Regarding appellate review of the Order of Possession, the City contends that
because RLR has failed to provide a full transcript of the April 21, 2016 evidentiary hearing
concerning the condemnation petition, this Court must presume that the trial court’s
findings in the Order of Possession were correct. In its reply brief, RLR counters that the
transcript attached by the trial court to the Order of Possession was sufficient for appellate
review. However, the excerpt from the hearing transcript attached to the Order of
Possession is limited to the trial court’s findings of fact and conclusions of law. No
transcript of the evidentiary portion of the April 2016 hearing is in the record.

Tennessee Rule of Appellate Procedure 24(b) provides in pertinent part:

[I]f a stenographic report or other contemporaneously recorded, substantially

verbatim recital of the evidence or proceedings is available, the appellant
shall have prepared a transcript of such part of the evidence or proceedings
as is necessary to convey a fair, accurate and complete account of what
transpired with respect to those issues that are the bases of appeal.

Rule 24(b) further provides that if less than the entire transcript is to be included,

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 the appellant shall, within 15 days after filing the notice of appeal, file with
the clerk of the trial court and serve on the appellee a description of the parts
of the transcript the appellant intends to include in the record, accompanied
by a short and plain declaration of the issues the appellant intends to present
on appeal.

Under Rule 24(b), the appellee may then designate additional parts of the transcript to be
included, and the appellant shall either include those parts at its own expense or request
that the trial court require the appellee to pay the expense. When no transcript is available,
Rule 24(c) provides that the appellant may prepare a statement of the evidence that “should
convey a fair, accurate and complete account of what transpired with respect to those issues
that are the bases of appeal.” When no transcript or statement of the evidence has been
provided, we must presume that the record would have supported the trial court’s findings.
See Sherrod v. Wix, 849 S.W.2d 780, 783 (Tenn. Ct. App. 1992) (“This court cannot review
the facts de novo without an appellate record containing the facts, and therefore, we must
assume that the record, had it been preserved, would have contained sufficient evidence to
support the trial court’s factual findings.”).

In its designation of the record on appeal, RLR included transcripts of several

hearings, including the hearings addressing RLR’s two motions for summary judgment.
However, RLR did not designate the transcript of the April 2016 hearing for inclusion in
the record. In its subsequent designation of additional materials to be included, the City
also did not designate the April 2016 hearing transcript. The transcript attached to and
incorporated into the Order of Possession begins with the trial court’s findings of fact,
specifically with the following statement: “The Court’s listened very carefully today and
previously when we had some arguments on this.” The record contains no transcript or
statement of the evidence describing what the court heard before making its findings of
fact. The trial court stated in the Order of Possession that it had reached its decision upon
consideration of the City’s condemnation petition and RLR’s objection and answer, as well
as “testimony of witnesses, statements of counsel, and the entire record.” In its ruling, the
trial court summarized the arguments presented during the hearing as related to
certifications for the greenway project, construction of the greenway project that had begun
on other properties, and damages for the property proposed to be taken from RLR.

Without a transcript or statement of the evidence describing the testimonies and

arguments, we must presume that the record of the evidentiary portion of the hearing, had
it been fully preserved, would have supported the trial court’s factual findings. See
Sherrod, 849 S.W.2d at 783. However, because the proper exercise of the power of
eminent domain is a matter of law, we will review the trial court’s conclusions of law in
the Order of Possession de novo with no presumption of correctness. See Allen Family
Trust, 2009 WL 837731, at *4.
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 VI. Constitutionality of the Order of Possession

RLR advances the position that the temporary construction easement across the
Duplex Property was unconstitutional because the City had planned to construct
replacement parking that would have been for the private benefit of RLR as the owner of
the Motel Property. RLR urges that because a portion of the City’s taking was purportedly
for a private purpose, this Court should reverse the entire Order of Possession as
unconstitutional. The City counters that the trial court properly found that the Order of
Possession did not require the City to build replacement parking on the Duplex Property
and that because the greenway project was completed by July 2018, the construction
easement traversing the Duplex Property had terminated with the greenway’s completion.6
The City also postulates that if this Court were to find that the Order of Possession included
a plan for replacement parking, such a private benefit to RLR would have been incidental
to the overarching public purpose of the greenway project. Upon careful review, we agree
with the trial court’s finding that the Order of Possession did not require the City to build
replacement parking on the Duplex Property. Moreover, we conclude that the Order of
Possession did not violate the United States Constitution or Tennessee Constitution
because it was entered for the public purpose of the greenway project.

Tennessee Code Annotated § 29-17-102(1) (West May 28, 2024, to current)

provides:

“Eminent domain” means the authority conferred upon the government, and
those entities to whom the government delegates such authority, to condemn
and take, in whole or in part, the private property of another, so long as the
property is taken for a legitimate public use in accordance with the fifth and
fourteenth amendments to the United States Constitution, the Constitution of
Tennessee, Art. I, § 21, and chapter 863 of the Public Acts of 2006[.]

The “Takings Clause” of the Fifth Amendment to the United States Constitution establishes
that private property shall not “be taken for public use, without just compensation.” It is
made applicable to the states by the Fourteenth Amendment. See Kelo v. City of New
6
As a preliminary matter, the City contends that “the issue of replacement parking” is moot because the
parking was “never prayed for, ordered or built” and because RLR was “fully compensated for the
inconvenience of the temporary construction easement on both tracts by the jury verdict on just
compensation.” See Alliance for Native Am. Indian Rights in Tenn., Inc. v. Nicely, 182 S.W.3d 333, 338
(Tenn. Ct. App. 2005) (“A case will be considered moot if it no longer serves as a means to provide some
sort of judicial relief to the prevailing party.”). Here, RLR has requested the relief of a reversal of the Order
of Possession, which was an interlocutory order in this case and could be reversed if this Court were to
determine that the City’s taking had been unconstitutional. Because RLR could be provided some sort of
judicial relief, the City’s mootness argument is unavailing.
- 16 -
London, Conn., 545 U.S. 469, 472 n.1 (2005). Article I, § 21 of the Tennessee Constitution
provides that “no man’s particular services shall be demanded, or property taken, or applied
to public use, without the consent of his representatives, or without just compensation being
made therefor.”

The version of Tennessee Code Annotated § 29-17-102(2) (West July 9, 2012, to

May 17, 2017) in effect when the condemnation petition was filed provided, in relevant
part, the following definition of “public use”:

“Public use” shall not include either private use or benefit, or the indirect
public benefits resulting from private economic development and private
commercial enterprise, including increased tax revenue and increased
employment opportunity, except as follows:

(A) The acquisition of any interest in land necessary for a road, highway,
bridge, or other structure, facility, or project used for public
transportation;

***

(D) Private use that is merely incidental to a public use, so long as no land
is condemned or taken primarily for the purpose of conveying or
permitting the incidental private use.

As this Court has explained:

Tennessee courts have long held that “the power of eminent domain
is against common right and all grants of such power are to be construed
strictly against the condemner and liberally in favor of the rights of property.”
Vinson v. Nashville, Chattanooga & St. Louis Ry., 45 Tenn. App. 161, 321
S.W.2d 841, 844 (1959). “Of course the power of eminent domain is to be
strictly construed and the procedure prescribed by statute must be followed.”
Id. at 844. “[T]he courts have the right and duty to determine the existence
of authority to take, the existence of legitimate public use and related
questions.” Duck River Elec. Membership Corp. v. City of Manchester, 529
S.W.2d 202, 204 (Tenn. 1975). In Pickler v. Parr, 138 S.W.3d 210, 213
(Tenn. Ct. App. 2003), perm. app. denied (Tenn. March 8, 2004), this Court
explained “the well-traveled analysis of the government’s right to take.” The
Pickler Court employed a multi-step test to determine whether a taking is
appropriate. Id. at 213. The first step is to determine whether the
condemning authority has the right to take. Id. The second step in the
- 17 -
 analysis is to determine whether the taking is for public or private use. Id. If
these questions are resolved in favor of the condemning authority, the
authority’s determination as to the need for the property is “conclusive upon
the courts” unless the opponent to the taking establishes “a clear and palpable
abuse of power, or fraudulent, arbitrary or capricious action.” Id. (quoting
Maryville v. Edmondson, 931 S.W.2d 932, 935 (Tenn. Ct. App. 1996), perm.
app. denied (Tenn. July 8, 1996)).

Although the determination of whether private property is being taken

for a public use is a judicial question, “‘all other incidents of the taking are
political questions, for the determination of the sovereign, and not judicial
questions, for the determination of the courts.’” City of Knoxville v. Heth,
186 Tenn. 321, 210 S.W.2d 326, 331 (1948) (quoting Southern Ry. Co. v.
Memphis, 126 Tenn. 267, 148 S.W. 662, 665 (1912)). Deciding which
property shall be taken, “‘determining its suitableness for the use to which it
is proposed . . . as well as deciding the quantity required, are all political
questions, which inhere in and constitute the chief value of the power to
take.’” Id. A municipality’s determination of “the necessity for the taking
is not a question for resolution by the judiciary and, absent a clear and
palpable abuse of power, or fraudulent, arbitrary or capricious action, it is
conclusive upon the courts.” Duck River, 529 S.W.2d at 204. In the context
of eminent domain, a taking is arbitrary and capricious if it “can be
characterized as a ‘willful and unreasonable action without consideration or
in disregard of facts or law or without determining principle.’” City of
Chattanooga v. Classic Refinery, No. 03A01-9712-CV-00552, 1998 WL
881862, at *6 (Tenn. Ct. App. Dec. 17, 1998) (quoting Black’s Law
Dictionary 105 (6th ed. 1990)).

City of Memphis v. Tandy J. Gilliland Family, LLC., 391 S.W.3d 60, 67-68 (Tenn. Ct. App.
2012).

In this case, RLR does not question the City’s authority to take private property for
a public purpose through its ordinance powers. See Tenn. Code Ann. § 6-19-101(9) (West
May 25, 2017, to current) (stating that incorporated cities may “[c]ondemn property, real
or personal or any easement, interest, or estate or use therein, either within or without the
city, for present or future public use”). RLR’s argument focuses on the second step in the
Pickler analysis: whether the taking is for public or private use. See City of Memphis, 391
S.W.3d at 67 (citing Pickler v. Parr, 138 S.W.3d 210, 213 (Tenn. Ct. App. 2003)). While
acknowledging that the greenway project itself was for a legitimate public purpose, RLR
asserts that the construction easement over the Duplex Property was for a private purpose
and therefore rendered the entire Order of Possession unconstitutional.
- 18 -
 As noted previously, the trial court expressly relied on its findings from the May
2016 Order of Possession, the September 2018 order denying the motion to enforce, and
the October 2019 order denying the first summary judgment motion in its order denying
RLR’s renewed motion for summary judgment. In the September 2018 order, the trial
court elucidated:

That the Court does not find that [the City] was specifically ordered
to construct the parking at issue on property owned by [RLR], and the Court
further does not find that to be for a public purpose. The Court finds that the
public purpose in the taking at issue was construction of the Greenway itself.

That the Court finds the project at issue, the Greenway, to be

completed and finds that the temporary construction easement at issue is
terminated.

(Paragraph numbering omitted.) The court agreed with RLR’s position that construction
of “the parking at issue on property owned by [RLR]” would not have been for a public
purpose. However, the court simultaneously found that the Order of Possession had not
included a specific order that the City build the replacement parking. The court declared
the “temporary construction easement at issue” to be terminated with the completion of the
greenway project, which the court reiterated was for a public purpose.

Indeed, the Order of Possession contains no mention of construction of replacement

parking spaces. RLR maintains that the diagram of the Duplex Property attached to the
Order of Possession set out the replacement parking and that therefore the order required
the City to construct the parking.7 In its reply brief on appeal, RLR has circled an area on
the diagram that includes lines drawn that could indicate parking spaces between the
“Construction Easement” and “New Area.” However, these lines are not labeled in any
way, and the term, “parking,” appears nowhere on the diagram. RLR also propounds that
the size of the construction easement on the Duplex Property—5,210 square feet as
compared to 1,786 square feet on the Hotel Property—would indicate that it was intended
to include the replacement parking. Although RLR’s assertion on this point may be true,
the fact remains that the Order of Possession contains no directive that the City construct
replacement parking on the Duplex Property.

In the Order of Possession, the trial court found that the City was “entitled to the
Permanent Greenway Easements and the Temporary Construction Easements sought in the
Petition.” Regarding the Duplex Property, the City requested in the petition that the
7
We have attached a copy of the Duplex Property diagram, as it appears within the collective exhibit to the
Order of Possession, to this Opinion.
- 19 -
permanent easement be “[g]ranted together with a temporary construction easement 10-
feet outside of the construction area, containing a total of 5,210 square feet.” The petition
did not mention the construction of a parking area. Having thoroughly reviewed the Order
of Possession and the record as a whole, we determine that the Order of Possession did not
require the City to construct replacement parking. Given that there is no dispute concerning
the public purpose of the greenway project, we affirm the trial court’s finding that the City’s
taking was for a public purpose.

RLR contends that despite the jury verdict awarding compensation to RLR for the
City’s taking, RLR has still sustained an uncompensated injury because the City has not
filed a release of the construction easement over the Duplex Property “on the title record.”
However, within the Order of Possession, the description of the easements for each tract
includes a provision stating: “The temporary construction easement shall expire upon the
completion of construction as it pertains to this tract.” In its September 2018 order, the
trial court determined that the temporary construction easement on the Duplex Property
was terminated. With this order, both parties had notice that the construction easement had
been terminated. As the City states in its appellate brief, the City’s “right to enter was
terminated by the Trial Court by order entered September 4, 2018 at the close of
construction.” According to the provision set forth in the Duplex Property description
within the Order of Possession, the temporary construction easement over the Duplex
Property expired “upon the completion of construction as it pertains to this tract.” We
interpret this to mean that upon the trial court’s declaration that the construction had been
completed, the construction easement was terminated. See, e.g., Cellco P’ship v. Shelby
Cnty., 172 S.W.3d 574, 582 (Tenn. Ct. App. 2005) (noting that according to the provision
of a deed, a temporary construction easement would “expire and terminate upon installation
of easement improvements or three (3) years from the date of this instrument whichever
comes first.”). The trial court’s September 2018 order is a matter of public record, easily
ascertainable by anyone seeking to discover the status of the construction easements over
RLR’s property.

To the extent that RLR relies on what it terms “judicial admissions” of the City’s
former counsel and the 2022 deposition testimonies of city officials to establish that
replacement parking was part of the City’s initial plan for the Duplex Property, we find
such reliance unavailing. During the July 2018 hearing that led to the September 2018
order, the City’s counsel stated the following concerning replacement parking:

This is parking on private land that does not benefit the public purpose of the
greenway.

So we believe that RLR got it right when they were complaining, your
Honor, that we should not be burdening their other lot with this parking. So
- 20 -
 the city reconsidered its position and changed its plans in relation to [the]
greenway. And I think the city has that right, your Honor, in terms of
modifying plans.

Counsel’s statement aligns with the trial court’s conclusion in the September 2018 order
that replacement parking would have been for a private purpose. Although the statement
indicates that the City initially had planned to construct the parking, this fact in no way
affects the trial court’s legal conclusion that replacement parking simply was not required
by the Order of Possession. See Old Hickory Coaches, LLC v. Star Coach Rentals, Inc.,
652 S.W.3d 802, 814 (Tenn. Ct. App. 2021) (“[J]udicial admissions of fact must be
deliberate and clear, while legal conclusions are rarely considered to be binding judicial
admissions.” (quoting Commercial Money Ctr., Inc. v. Ill. Union Ins. Co., 508 F.3d 327,
336 (6th Cir. 2007))).

Likewise, the deposition testimonies of Ms. Teaster (City Manager) and Mr.
Goodwin (Director of Parks and Recreation) indicated that the City initially planned to
build replacement parking on the Duplex Property. When questioned regarding whether
such parking would have been for the private use of RLR, Ms. Teaster answered in the
affirmative. However, these deposition testimonies, taken nearly six years after the Order
of Possession had been entered, do not establish the content of the Order of Possession. As
noted in a previous section of this Opinion, the only transcript in the record for the
evidentiary hearing leading to the May 2016 entry of the Order of Possession is the
memorandum opinion incorporated into the order. This memorandum opinion includes the
trial court’s findings of fact and conclusions of law, but it does not contain any transcription
of the evidentiary hearing leading to those findings and conclusions. We must therefore
presume that the record of the evidentiary portion of the hearing, if it had been fully
preserved, would have supported the trial court’s factual findings. See Sherrod, 849
S.W.2d at 783.

Accordingly, we determine that the trial court’s Order of Possession, which contains
no mention of replacement parking as part of the construction easement across the Duplex
Property, must be presumed accurate as to the scope of the City’s taking of RLR’s property.
Having determined, as a matter of law, that the Order of Possession did not include a
directive to the City to construct replacement parking, we decline to address the City’s
alternate argument that the private benefit of replacement parking would have been
incidental to the overall public purpose of the greenway project. See Tenn. Code Ann. §
29-17-102(2)(D).

Finally, we discern no “clear and palpable abuse of power, or fraudulent, arbitrary

or capricious action” that would render the City’s taking in this condemnation action
unconstitutional. See City of Memphis, 391 S.W.3d at 68 (quoting Duck River Elec.
- 21 -
Membership Corp. v. City of Manchester, 529 S.W.2d 202, 204 (Tenn. 1975)). We
therefore conclude that the Order of Possession did not violate precepts of the United States
Constitution or the Tennessee Constitution. Thus, we affirm the Order of Possession, as
well as the trial court’s subsequent rulings confirming the scope of the Order of Possession,
including the court’s order denying RLR’s renewed motion for summary judgment.

VII. Abandonment

RLR contends that the trial court erred by allowing the City to abandon its interest
in the construction easement over the Duplex Property without awarding to RLR statutory
costs and fees pursuant to Tennessee Code Annotated § 29-17-912(b)(1). Based on the
same statutory provision, RLR requests an award of costs and attorney’s fees on appeal.
Tennessee Code Annotated § 29-17-912(b)(1) (West May 18, 2017, to current) provides:

Notwithstanding subsection (a) [regarding the amount of compensation

awarded at trial], the state court having jurisdiction of a proceeding initiated
by any person, agency or other entity to acquire real property for the purpose
of a public utility or for a road, highway, bridge, or other structure, facility,
or project used for public transportation by condemnation shall tax the 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 such sum as will in
the opinion of the court reimburse such owner for the owner’s reasonable
disbursements and expenses, including reasonable attorney, appraisal and
engineering fees, actually incurred because of condemnation proceedings,
only if:

(A) The final judgment is that the acquiring party cannot acquire the real
property by condemnation; or

(B) The proceeding is abandoned by the acquiring party.

(Emphasis added.) “This Court has held that to constitute an abandonment under this
section, there must be ‘a voluntary act by the condemning authority.’” Knox Cnty. ex rel.
Schumpert v. Union Livestock Yard, Inc., 59 S.W.3d 158, 164 (Tenn. Ct. App. 2001)
(quoting Metro. Gov’t of Nashville & Davidson Cnty. v. Denson, No. 01A01-005-CV-
00174, 1990 WL 154646, at *9 (Tenn. Ct. App. Oct. 17, 1990)).

Inasmuch as we have concluded that the Order of Possession did not require the
City to construct replacement parking as part of the construction easement over the Duplex
Property, we determine the issue of abandonment to be pretermitted as moot because
RLR’s argument is grounded in its assertion that the City failed to construct the
- 22 -
replacement parking. Moreover, we agree with the City’s point that it has not abandoned
this condemnation proceeding at any point during the pendency of the action. See Tenn.
Code Ann. § 29-17-912(b)(1)(B). Accordingly, we deny RLR’s request for a statutory
award of costs and attorney’s fees on appeal.

VIII. Conclusion

For the foregoing reasons, we affirm the trial court’s judgment. We deny RLR’s
request for an award of costs and attorney’s fees on appeal. We remand this matter to the
trial court for enforcement of the judgment and collection of costs assessed below. Costs
on appeal are assessed to the appellant, RLR Investments, LLC.

s/ Thomas R. Frierson, II____________

THOMAS R. FRIERSON, II, JUDGE

- 23 -
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- 24 -