IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
July 9, 2012 Session
CHARLES RAYMOND LOVEDAY ET AL. v. BLOUNT COUNTY,
TENNESSEE ET AL.
Appeal from the Circuit Court for Blount County
No. L-17304 David R. Duggan, Judge
No. E2011-01713-COA-R3-CV - Filed July 24, 2012
Charles Raymond Loveday and his wife, Virginia Hope Loveday (collectively “the
Plaintiffs”), filed this action in January 2011 against Blount County and the Blount County
School Board (collectively “the Defendants”) to recover for flood damage to their property
allegedly caused by the construction of a new school next to the Plaintiffs’ property. The
school was built in 2007. The Plaintiffs allegedly sustained “permanent” damage in 2008,
2009 and 2010. The Defendants filed a motion to dismiss asserting that the action was
barred by the statute of limitations for a taking. The trial court granted the motion. The
Plaintiffs appeal. We affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
Affirmed; Case Remanded
C HARLES D. S USANO, J R., J., delivered the opinion of the Court, in which H ERSCHEL P.
F RANKS, P.J., and D. M ICHAEL S WINEY, J., joined.
Robert W. White and Joe Nicholson, Maryville, Tennessee, for the appellants, Charles
Raymond Loveday and Virginia Hope Loveday.
Robert N. Goddard, Maryville, Tennessee, for the appellees, Blount County, Tennessee, and
Blount County School Board.
OPINION
I.
A.
The Plaintiffs own property located at 343 South Old Grey Ridge Road, Friendsville
(“the Property” or “the Plaintiffs’ Property”). They reside on the Property and have utilized
it “for grazing and feeding of livestock and for the growing of crops and livestock feed.”
According to the complaint,
[o]n or about February, 2007, the Defendants began construction
on the Union Grove Elementary School, located at 330 Old Grey
Ridge Road, Friendsville, TN, 37737, a plot of land owned by
one of the Defendants that is contiguous to [the] Plaintiffs’
Property.
On or . . . shortly after construction began, [the] Plaintiffs
became aware of water runoff damage to their Property caused
by the runoff from the Defendants’ property, including but not
limited to the failure of the Defendants’ detention and runoff
pond, which was constructed at the direction of [the]
Defendants.
As a result of the water damage, the Property is no longer usable
for grazing and feeding of livestock or for growing crops and
livestock feed.
Such water damage is permanent in nature.
(Emphasis added.) The complaint further alleges that the flooding amounts to a taking of the
Property because the Plaintiffs “have been put in a position that they now own property that
they cannot utilize to its full economic value.” The complaint states that the “diminished
value” of the Property, i.e., “the difference between the market value of the Property prior
to the flooding and the current market value,” is $1,000,000.
Alternatively, the complaint alleges that the new school is in a “defective condition”
that constitutes a nuisance. The complaint states that
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[the] Defendants’ construction project of a new school at the
location described above, resulting in the flooding of [the]
Plaintiffs’ contiguous Property, annoyed and disturbed [the]
Plaintiffs’ ability to freely use their Property and rendered its
ordinary use and physical occupation uncomfortable.
[The] Defendants received notice of the annoyance and
disturbance from the permanent flood damage to [the] Plaintiff’s
Property [in] 2008, 2009 and 2010 when [the] Plaintiffs reported
the annoyance and disturbance to representatives of the
Defendants in a meeting on several occasions.
At the meeting between the Plaintiffs and [the] Defendants’
representatives in 2009, [the] Plaintiffs were promised that the
Defendants would undertake complete remediation of the
flooding problem.
This annoyance and disturbance remains and is ongoing in
nature.
(Emphasis added.)
Finally, the complaint alleges that the Defendants owed a duty to the Plaintiffs which
they breached by “causing and/or allowing water to flood [the] Plaintiffs’ Property . . .
resulting in permanent damage and a taking of [the] Plaintiffs’ Property.” (Emphasis added.)
The Defendants filed a motion to dismiss “pursuant to Rule 12.02(6) of the Tennessee
Rules of Civil Procedure . . . based on the applicable statutes of limitations contained in
T.C.A. § 29-16-124 . . . .”1 The motion asserts that “when the Plaintiffs’ cause of action is
actually based in inverse condemnation there is no cause of action for common law nuisance
or negligence.” The motion asserts, alternatively, that a common law nuisance claim or a
1
This is the statute of limitations applicable to takings. The statute states, in pertinent part:
The owners of land shall, in such cases, commence proceedings within
twelve (12) months after the land has been actually taken possession of, and
the work of the proposed internal improvement begun . . . .
Tenn. Code Ann. § 29-16-124 (2000).
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negligence claim is subject to the Governmental Tort Liability Act’s one-year statute of
limitations, and is therefore barred.
B.
The trial court granted the motion to dismiss. The order dismissing the case states,
in pertinent part, as follows:
[i]n the present case, and by their own factual allegations as
contained at paragraphs 31 and 40 of their complaint, [the]
Plaintiffs knew as early as 2008 that the injury to their property
was permanent. They claim to have put [the] Defendants on
notice of permanent flood damage as early as 2008, and indeed
claim to have delivered such notice to [the] Defendants in 2008,
2009, and 2010. In addition, [the] Plaintiffs failed to file their
complaint within one year of the time that [the] Defendants’
representatives allegedly promised to remediate the problem,
and yet failed to do so; despite the fact that [the] Plaintiffs knew
that the injury to their property was permanent in nature.
[The] Plaintiffs did not file their suit until January 27, 2011,
more than one year after the time that they knew they had
suffered a permanent injury to their property, and more than one
year after their meeting with [the] Defendants’ representatives.
Given that the key factor, in determining when the statute of
limitations begins to run, is when the property owner knows that
the injury to his property is a permanent injury rather than a
temporary one, and given that [the] Plaintiffs had such
knowledge in 2008 despite any alleged representations of [the]
Defendants’ representatives in 2009, [the] Plaintiffs did not
timely file their complaint.
Accordingly, the Court finds that [the] Plaintiffs’ complaint,
with respect to their inverse condemnation claim, is barred by
the applicable statute of limitations.
[The] Plaintiffs have also stated claims for common law
nuisance and negligence. This Court has already found,
however, that [the] Plaintiffs have stated a prima facie case for
inverse condemnation. Once a court determines, under the facts
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of a case, that a taking has occurred, a plaintiff is precluded
from recovering on a temporary nuisance or negligence claim.
Peterson v. Putnam County, Tennessee, [No. M2005-02222-
COA-R3-CV, 2006 WL 3007516 (Tenn. Ct. App. M.S., filed
Oct. 19, 2006)]; Large v. Greene County, Tennessee, [No.
E2008-02764-COA-R3-CV, 2009 WL 5083482 (Tenn. Ct. App.,
E.S., filed Dec. 28, 2009)].
It is also noted that to the extent [the] Plaintiffs are seeking
damages from [the] Defendants, even if their complaint could
proceed, their claim for damages would be barred by the
applicable one-year statute of limitations contained within the
Tennessee Governmental Tort Liability Act, Tenn Code Ann. §
29-20-305(B). (It is also noted that the statute of limitations
found at Tenn. Code Ann. § 29-20-305(B) would not bar [the]
Plaintiffs’ action for an injunction for abatement of the
nuisance.)
Nevertheless, because [the] Plaintiffs have stated a cause of
action for inverse condemnation and are, therefore, precluded
from pursuing a temporary nuisance or negligence claim against
[the] Defendants, it is not necessary for this Court to apply the
statute of limitations found within the Governmental Tort
Liability Act.
Accordingly, . . . [the] Defendants’ motion to dismiss is granted.
...
II.
The issue as stated verbatim in the Plaintiffs’ brief is:
Did the Trial Court err in granting [the Defendants’] Motion to
Dismiss under Rule 12.02(6) of the Tennessee Rules of Civil
Procedure by finding that the [Plaintiffs] were precluded from
pursuing claims for nuisance and negligence, when they had
alternatively pled a cause of action for inverse condemnation,
when the cause of action for inverse condemnation has passed
before the filing of the Complaint in this cause?
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III.
Our standard of review in this case is as articulated in Trau-Med of America, Inc. v.
Allstate Ins., 71 S.W.3d 691, 696-97 (Tenn. 2002):
A Rule 12.02(6) motion to dismiss only seeks to determine
whether the pleadings state a claim upon which relief can be
granted. Such a motion challenges the legal sufficiency of the
complaint, not the strength of the plaintiff’s proof, and,
therefore, matters outside the pleadings should not be considered
in deciding whether to grant the motion. See Bell ex rel. Snyder
v. Icard, Merrill, Cullis, Timm, Furen & Ginsburg, P.A., 986
S.W.2d 550, 554 (Tenn. 1999). In reviewing a motion to
dismiss, the appellate court must construe the complaint
liberally, presuming all factual allegations to be true and giving
the plaintiff the benefit of all reasonable inferences. See Pursell
v. First Am. Nat’l Bank, 937 S.W.2d 838, 840 (Tenn. 1996). It
is well-settled that a complaint should not be dismissed for
failure to state a claim unless it appears that the plaintiff can
prove no set of facts in support of his or her claim that would
warrant relief. See Doe v. Sundquist, 2 S.W.3d 919, 922 (Tenn.
1999); Fuerst v. Methodist Hosp. S., 566 S.W.2d 847, 848
(Tenn. 1978). Great specificity in the pleadings is ordinarily not
required to survive a motion to dismiss; it is enough that the
complaint set forth “a short and plain statement of the claim
showing that the pleader is entitled to relief.” White v. Revco
Disc. Drug Ctrs., Inc., 33 S.W.3d 713, 718 (Tenn. 2000) (citing
Tenn. R. Civ. P. 8.01). We review the trial court's legal
conclusions de novo without giving any presumption of
correctness to those conclusions. Id.
IV.
The Plaintiffs concede that their complaint states a claim for inverse condemnation
and that the inverse condemnation claim is time-barred. They argue that the complaint also
states a claim for nuisance and negligence and that they have a right to plead and proceed on
the alternative theories even if their inverse condemnation claim is barred. They rely on
Tenn. R. Civ. P. 8.05(2) which states:
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A party may set forth two (2) or more statements of a claim or
defense alternatively or hypothetically. When two (2) or more
statements are made in the alternative and one (1) of them if
made independently would be sufficient, the pleading is not
made insufficient by the insufficiency of one or more of the
alternative statements. A party may also state as many separate
claims or defenses as he or she has, regardless of consistency.
The Plaintiffs argue that the trial court’s reliance upon Large v. Greene County,
Tennessee, No. E2008-02764-COA-R3-CV, 2009 WL 5083482 (Tenn. Ct. App. E.S., filed
Dec. 28, 2009) is misplaced because Large, unlike this case, was decided on a motion for
summary judgment. They argue that the essential facts were undisputed in Large whereas
in the present case the facts are still in dispute. The essence of the Plaintiffs’ argument, as
we understand it, is that some set of facts consistent with the complaint may entitle them to
relief under the nuisance claim, therefore the motion to dismiss should have been denied.
We acknowledge that our opinion in Large involved a summary judgment, but that
distinction is not dispositive. In Large, we relied upon our earlier opinion in Peterson v.
Putnam County, No. M2005-02222-COA-R3-CV, 2006 WL 3007516 (Tenn. Ct. App. M.S.,
filed Oct. 19, 2006). Peterson was also a summary judgment case, but our opinion in that
case includes the following discussion of two Supreme Court cases that affirmed dismissals
of nuisance claims based on the determination in each case that the complaint alleged a
taking rather than a nuisance:
The first issue with respect to the plaintiffs’ common law
nuisance claim – i.e., whether the plaintiffs’ proper cause of
action was a claim for inverse condemnation, rather than a
temporary nuisance claim – has been addressed by the courts of
this State on numerous occasions. . . . Where the adverse effect
amounts to a “taking” of property by the government, the
plaintiff’s proper remedy is one for inverse condemnation under
the eminent domain statutes. See T.C.A. § 29-16-123, 124; see
Pleasant View Util. Dist. v. Vrandenburg, 545 S.W.2d 733
(Tenn. 1977); Monday v. Knox County, 417 S.W.2d 536 (Tenn.
1967); Smith v. Maury County, No. 01A01-9804-CH-00207,
1999 WL 675135 (Tenn. Ct. App. M.S., filed Sept. 1, 1999).
In the case of Monday v. Knox County, the plaintiff filed a
common law nuisance action against the county, alleging that
the county’s construction of a nearby highway had caused
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excessive amounts of water to collect on the plaintiff’s property.
417 S.W.2d at 536. The plaintiff sought a mandatory injunction.
Id. The trial court dismissed the plaintiffs’ suit, holding that the
plaintiffs’ allegations amounted to a “taking” by the county and
that the exclusive remedy was a claim under the eminent domain
statutes. Id. The Supreme Court affirmed, stating that “there
has been a taking of [the plaintiff’s] property for public use for
which the remedy is reverse condemnation proceedings and [the
county] would not be liable on the theory of a nuisance.” Id. at
537. Notably, the plaintiff argued that the intrusion only
amounted to a temporary nuisance because the condition causing
the damages could be remedied by certain changes in the
construction of the highway. Id. The Court rejected this
argument by stating that “the Court has no authority to order
such change in construction; for to do so would in effect be
constructing public roads by judicial order.” Id.
Similarly, in Pleasant View Util. Dist. v. Vrandenburg, the
plaintiffs filed an action to enjoin a utility district from
discharging thousands of gallons of waste water on their
property. 545 S.W.2d at 734. The utility district moved to
dismiss the plaintiffs’ suit, primarily arguing that its actions
amounted to a “taking,” rather than a nuisance. Id. The utility
district asserted that the plaintiffs’ proper remedy was an action
for inverse condemnation, and furthermore, that any inverse
condemnation action was now barred by the one-year statute of
limitations for such actions. Id. at 734-35. The trial court
granted the utility district’s motion to dismiss. Id. at 735. As
noted by the Supreme Court, the Court of Appeals reversed and
remanded, concluding that the plaintiffs’ suit was “ ‘not a suit
for damages in reverse condemnation [but] is primarily an
injunction suit praying for injunctive and general relief.’ ” Id.
(bracketing in original). The Supreme Court reversed the Court
of Appeals and affirmed the trial court’s judgment. Id. at
736. . . .
Id. at *9 (emphasis added).
One key fact that distinguishes a claim of temporary nuisance from a taking by a
governmental entity is damage to the property that is permanent in nature. Id. at 5-6. “Only
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when the injury is permanent in nature can there be a ‘taking’ within the contemplation of
the statute; and until there is a ‘taking’ the statute of limitations does not begin to run.” Id.
(quoting Knox County v. Moncier, 455 S.W.2d 153, 156 (Tenn. 1970)). Conversely, there
is a taking and the statute of limitations begins to run when the owner of the damaged
property is “charged with knowledge that the injury to his property [is] permanent.” Id.
(quoting Moncier, 455 S.W.2d at 156). One indication that the injury is permanent and
therefore a taking is damage to the market value of the property. Id. at 4 (citing Jackson v.
Metro Knoxville Airport Auth., 922 S.W.2d 860, 865 (Tenn. 1996)).
We conclude that even if Peterson allows a plaintiff to maintain alternative pleadings
sounding in both nuisance and taking, it does not allow a plaintiff to proceed on a nuisance
theory when the allegations of the complaint allow only one conclusion, i.e., that he or she
knew that the damage to the property at issue is permanent. We further hold that the
allegations in the complaint in the present case only allow the conclusion that the damage to
the Plaintiffs’ property is permanent and that they knew it was permanent more than one year
before they filed the complaint in 2011. The complaint states that “ [o]n or shortly after
construction began [in 2007], [the] Plaintiffs became aware of water runoff damage to their
Property.” The complaint specifically states that the “water damage is permanent.” The
complaint states that the water damage reduced the value of the Plaintiffs’ Property by
$1,000,000. Even the “nuisance” count of the complaint refers to the damage as “permanent
flood damage” which was reported to the Defendants as such in a meeting between the
parties in 2009. The damages are alleged to be the result of a “defective condition” in the
construction. The “negligence” count repeats allegations of “permanent damage” and
diminished value that date back to the construction of the school. Allegedly, the Defendants
promised to undertake remediation in 2009, but that was more than one year before the filing
of the complaint. Even if there was additional damage in 2010, it is well established that the
statute of limitations begins to run when the injured party knows the nature of the injury; he
or she cannot wait until the full extent of the injury becomes apparent. See Peterson at *12.
We also note that the complaint contains not one allegation that the alleged nuisance is
“temporary.” The Plaintiffs point to the allegation that the “disturbance remains and is
ongoing.” That language is entirely consistent with the numerous allegations of permanent
damage characteristic of a taking. It follows that the trial court did not err in granting the
Defendants’ motion to dismiss.
V.
The judgment of the trial court is affirmed. Costs on appeal are taxed to the
appellants, Charles Raymond Loveday and Virginia Hope Loveday. This case is remanded,
pursuant to applicable law, for the collection of costs assessed by the trial court.
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_______________________________
CHARLES D. SUSANO, JR., JUDGE
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