Crossville Chronicle, Crossville, TN

February 15, 2013

Smith Mountain lawsuit dismissed

Agreement voids action of county in 2009

By Gary Nelson
Senior staff writer

CROSSVILLE — A lawsuit filed against the county in 2009, which was appealed all the way to the state of Tennessee Supreme Court, has been dismissed after a mutual agreement was made by all parties in the case.

The lawsuit against Cumberland County and Smith Mountain Solutions, LLC was filed by residents and business owners on Smith Mountain in order to stop a fly ash landfill from being constructed in an old mine on top of Smith Mountain after the county approved a resolution allowing the construction.

Ronald Thurman, presiding chancellor of the Chancery Court of Cumberland County, signed an agreed order of dismissal Feb. 11, 2013.

"This is exactly what we were trying to accomplish by filing the lawsuit in the first place. This is a huge victory for not only myself but to all the residents of this mountain community. We never gave up on it and are extremely grateful for this final decision," Dave Brundage of Black Cat Lodge and one of the plaintiffs in the suit, said.

The lawsuit sought a judicial review by writ of statutory certiorari by Ronald Thurman, presiding chancellor of the Chancery Court of Cumberland County, regarding resolution 0609-12 adopted June 15, 2009, by the Cumberland County Commission and Cumberland County.

The resolution allowed Smith Mountain Solutions, LLC to construct the coal ash landfill.

Smith Mountain Solutions had plans to file for a permit with Cumberland County and the state of Tennessee in order to reclaim a surface mine on Smith Mountain Rd. using fly ash from the TVA spill at the Kingston Fossil Plant.

In the meantime, the coal ash went elsewhere and the project never came to fruition.

Cumberland County Attorney Randal Boston reported to commissioners last month during the monthly county commission meeting that he thought the suit would be agreed to be dropped by all parties involved.

"That order is supposed to be drawn up shortly," Boston said.

According to the order signed by Thurman, all parties agree that:

• Any future landfill project for a landfill at the location approved by the county commission will require full compliance with the requirements of the Jackson Law;

• The application and approval by the county commission for Smith Mountain Solutions is no longer applicable to any landfill construction proposal;

• The host benefit agreement is terminated and no additional obligations shall arise thereunder;

• The vote of June 15, 2009, approving resolution 0609-12 is void;

• This cause of action is dismissed;

• Each party shall bear its own attorney fees and costs; and

• This order is final and appealable with no just cause for delay.

The suit was originally filed in Chancery Court by Elizabeth L. Murphy of Nashville, TN Aug. 12, 2009

Thurman dismissed the lawsuit against Cumberland County in November 2009 based on a legal technicality.

The basis for the decision was that a verified petition was not filed by the plaintiffs within a 60-day time period as required in Tennessee Code Annotated (TCA) 27-9-102.

According to the original motion to dismiss filed by Boston, "In this case, the petitioners did not file the required verification until after the 60-day time limit had expired. Accordingly, the petition must be dismissed. The law is clear: because the petitioners failed to provide the court with a verified petition within the requisite time period, the court never acquired subject matter jurisdiction under rule 12.02 (1) and the petition must be dismissed with prejudice."

That decision was appealed by and a court of appeals of Tennessee judge upheld the ruling of Chancellor Ronald Thurman in the case.

The plaintiff group then appealed that ruling and the Court of Appeals of Tennessee at Knoxville, "Herschel Pickens Franks, P.J. delivered the opinion of the court, in which Charles D. Susano, Jr. and John W. McClarty joined."

The case was heard July 7, 2010, and the ruling was filed Aug. 4, 2010.

The ruling upheld Thurman's ruling that the case cannot be heard because the original 60-day time period was not followed by the group who filed suit.

The plaintiff group then decided to file a request for appeal to the Supreme Court of Tennessee and the Supreme Court of the state of Tennessee ruled that it would hear the case.

Those who filed the appeal in the suit included Dave Brundage, Black Cat Lodge, LLC, John Coye, Barbara Coye, David Cobb, Sonja Cobb, Larry Oran, Mary Oran, Lou Devillon, Joan Devillon, Vincent R. Jozwiak and Carolyn W. Jozwiak.

The Supreme Court of Tennessee in 2011 reversed the ruling of both the Court of Appeals and Chancellor Ronald Thurman in the case.

That ruling was filed by the Supreme Court of Tennessee Dec. 19, 2011.

In that ruling, the Tennessee Supreme Court stated, "We reverse the judgment of the Court of Appeals and the trial court and remand the case to the trial court for a de novo review of the decision of the Cumberland County Commission in accordance with the criteria contained in Tenn. Code Annotated 68-211-704(b)."

The Supreme Court ruling further stated that costs of the appeal will be split evenly between Cumberland County and Smith Mountain Solutions, LLC.

Tennessee Supreme Court Justice William C. Koch Jr. delivered the opinion and was joined by Supreme Court Justices Cornelia A. Clark, Janice M. Holder, Gary R. Wade and Sharon G. Lee.

The ruling meant the case was back to square one and to be heard by Chancellor Thurman as it was supposed to be heard in the beginning.

After months of review and discussions, all parties agreed it best the suit be dismissed providing the agreements in Thurman's order.

County attorney Randal Boston represented Cumberland County and William L. Penny of Nashville represented Smith Mountain Solutions in the case.