IN THE SUPREME COURT OF TENNESSEE
AT NASHVILLE
February 11, 2010 Session
B & B ENTERPRISES OF WILSON COUNTY, LLC ET AL. v. CITY OF
LEBANON ET AL.
Appeal by Permission from the Court of Appeals, Middle Section
Circuit Court for Wilson County
No. 14108 John D. Wootten, Jr., Judge
No. M2008-00572-SC-R11-CV - Filed August 31, 2010
This appeal involves the application of the one-year statute of limitations in Tenn. Code Ann.
§ 29-16-124 (2000) to a temporary regulatory taking claim. The developer of a residential
subdivision in Wilson County filed suit in the Circuit Court for Wilson County against the
City of Lebanon and others alleging that the city’s planning commission had denied it all
economically beneficial use of its property by wrongfully refusing to approve the final plans
for two phases of its subdivision. The City moved for a summary judgment on the ground
that the statute of limitations in Tenn. Code Ann. § 29-16-124 had expired before the
developer filed suit. The developer responded that the limitations period was tolled while
it sought judicial review of the planning commission’s decision. The trial court held that the
developer’s lawsuit was timely because the statute of limitations did not begin to run until
the entry of the Court of Appeals’ opinion invalidating the planning commission’s action.
Both the trial court and the Court of Appeals granted the City’s application for an
interlocutory appeal in accordance with Tenn. R. App. P. 9. The Court of Appeals thereafter
reversed the trial court and determined that the developer’s lawsuit was not timely because
the statute of limitations began to run when the planning commission declined to approve the
final subdivision plans. B & B Enters. of Wilson Cnty., LLC v. City of Lebanon, No. M2008-
00572-COA-R9-CV, 2009 WL 130188 (Tenn. Ct. App. Jan. 14, 2009). We granted the
developer’s application for permission to appeal and now affirm the Court of Appeals.
Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Appeals
Affirmed
W ILLIAM C. K OCH, J R., J., delivered the opinion of the Court, in which J ANICE M. H OLDER,
C.J., C ORNELIA A. C LARK, G ARY R. W ADE, and S HARON G. L EE, JJ., joined.
G. Frank Lannom and Melanie R. Bean, Lebanon, Tennessee, for the appellants, B & B
Enterprises of Wilson County, LLC and Hal Bone d/b/a Hal Bone Enterprises.
Derrick C. Smith, Nashville, Tennessee, for the appellees, City of Lebanon, City of Lebanon
Planning Commission, Patsy Anderson, Ronnie Kelley, David Cook, Don Fox, Claude
Wilson, Joe Holbrook, Nick Locke, Jan Mangrum, Joe Hayes, and Johnnie Peyton.
OPINION 1
I.
In 1998, John Hill began to develop the Chaparral Subdivision on property located in
the City of Lebanon. Even though the project complied with all applicable land use
requirements, the City of Lebanon Planning Commission (“Planning Commission”) declined
to approve the subdivision because of opposition by neighboring property owners. Mr. Hill
sought judicial review of the Planning Commission’s decision in the Chancery Court for
Wilson County. The Chancery Court found that the Planning Commission had acted
arbitrarily and capriciously.
Following his victory in the trial court, Mr. Hill redesigned the project in an effort to
address the neighbors’ objections. He purchased additional property and developed a plan
to construct 106 homes on approximately 35 acres in three phases. Phase One involved the
construction of homes on 34 lots on approximately 10 acres. The Planning Commission’s
staff recommended approval of the subdivision plan and the plan for Phase One, conditioned
on several minor technical corrections. On July 24, 2001, the Planning Commission
approved the revised preliminary plat for the entire subdivision and the final plat for Phase
One, subject to the staff recommendations.
1
Some of the facts contained in this opinion have been gleaned from prior proceedings in this case
and related cases. See B & B Enters. of Wilson Cnty., LLC, v. City of Lebanon, No.
M2003-00267-COA-R3-CV, 2004 WL 2916141 (Tenn. Ct. App. Dec. 16, 2004) (No Tenn. R. App. P. 11
application filed); B & B Enters. of Wilson Cnty., LLC v. City of Lebanon, No. M2006-02464-COA-R9-CV,
2007 WL 1062216 (Tenn. Ct. App. Apr. 9, 2007) (No Tenn. R. App. P. 11 application filed). Because we
are permitted to take judicial notice of the facts from earlier proceedings in the same action and from prior
proceedings, State v. Lawson, 291 S.W.3d 864, 869-70 (Tenn. 2009), we have included facts from the earlier
proceedings to provide a clearer understanding of the context in which this case arose.
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Mr. Hill sold the development to B & B Enterprises of Wilson County, LLC and Hal
Bone.2 In 2002, B & B Enterprises submitted the final plats for Phases Two and Three of the
subdivision to the Planning Commission for approval. The Planning Commission’s staff
recommended approval of these plats “with corrections.” However, neighboring property
owners continued to object to the development because they believed that it was not
compatible with the surrounding neighborhood, that it would increase traffic, and that it
would lower their property values. On January 22, 2002, the Planning Commission declined
to approve the plans for Phases Two and Three. B & B Enterprises brought the project back
to the Planning Commission on February 26, 2002, and the Planning Commission again
declined to approve the plans for Phases Two and Three despite its staff’s conclusion that
these plats met all applicable requirements.
B & B Enterprises, like Mr. Hill, sought judicial review of the Planning Commission’s
decision in the Chancery Court for Wilson County. The Chancery Court held that the
Planning Commission had acted arbitrarily and capriciously when it declined to approve the
plans for Phases Two and Three. The Planning Commission appealed to the Court of
Appeals. In its December 16, 2004 opinion, the Court of Appeals held that “because the
planning commission has no legal or factual basis for declining to approve Phases Two and
Three, it has no option other than to follow the law and approve these plats.” B & B Enters.
of Wilson Cnty. v. City of Lebanon, 2004 WL 2916141, at *7. The appellate court remanded
the case to the Chancery Court for proceedings consistent with its opinion.
On December 2, 2005, B & B Enterprises initiated a two-pronged attack against the
City of Lebanon, the Planning Commission, and the individual members of the Planning
Commission.3 First, it filed a complaint in the Circuit Court for Wilson County seeking
monetary damages from the City of Lebanon defendants based on claims of regulatory taking
and violation of civil rights. Second, it filed a motion in the Chancery Court for Wilson
County to amend its original petition for writ of common-law certiorari to add regulatory
taking and violation of civil rights claims.4 The City of Lebanon defendants removed the
Circuit Court action to the United States District Court for the Middle District of Tennessee.
2
These parties will be referred to collectively as “B & B Enterprises.”
3
These defendants will be referred to collectively as “City of Lebanon defendants.”
4
This appeal does not involve the later proceedings in the Chancery Court. After the Chancery Court
permitted B & B Enterprises to amend its petition, the Court of Appeals granted an interlocutory appeal,
vacated the trial court’s order, and remanded the case with instructions to deny the motion to amend because
claims for judicial review of decisions of government bodies cannot be combined with claims for damages.
B & B Enters. of Wilson Cnty., LLC v. City of Lebanon, 2007 WL 1062216, at *2.
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However, the District Court remanded the case to the Circuit Court after B & B Enterprises
voluntarily dismissed its civil rights claim.
Finding itself back in state court, the City of Lebanon defendants moved for a
summary judgment on the ground that the condemnation claim was barred by the one year
statute of limitations contained in Tenn. Code Ann. § 29-16-124 (2000) because the suit had
not been filed within one year of the Planning Commission’s February 26, 2002 denial of the
plans for Phases Two and Three. B & B Enterprises responded that the Planning
Commission’s action should not be considered final for statute of limitations purposes until
December 16, 2004, the date that the Court of Appeals filed its decision reversing the
Planning Commission’s decision.
On October 24, 2007, the Circuit Court denied the City of Lebanon defendants’
motion for summary judgment, holding that “the appropriate triggering event to commence
the statute of limitations is the [December 16, 2004] filing . . . of the Court of Appeals
decision.” The City of Lebanon defendants sought, and were granted, permission to seek
interlocutory appeal. The Court of Appeals reversed the Circuit Court after concluding that
“the statute of limitations was triggered, at the latest, when the plaintiffs’ writ of certiorari
action was filed, which was April 12, 2002.” B & B Enters. of Wilson Cnty., LLC v. City of
Lebanon, No. M2008-00572-COA-R9-CV, 2009 WL 130188, at *3 (Tenn. Ct. App. Jan. 14,
2009). We granted B & B Enterprises’s Tenn. R. App. P. 11 application for permission to
appeal to address the issue of first impression regarding when the statute of limitations begins
to run in cases of this sort.
II.
The standards by which appellate courts customarily review decisions to grant or deny
motions for summary judgment are well-known by the bench and bar. Summary judgments
are appropriate in virtually every civil case that can be resolved on the basis of legal issues
alone. Green v. Green, 293 S.W.3d 493, 513 (Tenn. 2009); Fruge v. Doe, 952 S.W.2d 408,
410 (Tenn. 1997); Byrd v. Hall, 847 S.W.2d 208, 210 (Tenn. 1993). They are not appropriate
when genuine disputes regarding material facts exist. Tenn. R. Civ. P. 56.04. Accordingly,
a summary judgment is appropriate only when the undisputed facts, and the inferences in the
non-moving party’s favor reasonably drawn from these facts, require granting a judgment as
a matter of law to the party seeking the summary judgment. Eskin v. Bartee, 262 S.W.3d
727, 732 (Tenn. 2008); Griffis v. Davidson Cnty. Metro. Gov’t, 164 S.W.3d 267, 283-84
(Tenn. 2005); Staples v. CBL & Assocs., Inc., 15 S.W.3d 83, 89 (Tenn. 2000).
Orders granting a summary judgment are not entitled to a presumption of correctness
on appeal. Bailey v. Blount Cnty. Bd. of Educ., 303 S.W.3d 216, 226 (Tenn. 2010); Maggart
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v. Almany Realtors, Inc., 259 S.W.3d 700, 703 (Tenn. 2008). Thus, appellate courts
reviewing an order granting a summary judgment must make a fresh determination that the
requirements of Tenn. R. Civ. P. 56 have been satisfied. Eskin v. Bartee, 262 S.W.3d at 732;
Eadie v. Complete Co., 142 S.W.3d 288, 291 (Tenn. 2004). The reviewing court must
consider the evidence in the light most favorable to the non-moving party and must resolve
all reasonable inferences in the non-moving party’s favor. Mills v. CSX Transp., Inc., 300
S.W.3d 627, 632 (Tenn. 2009); Green v. Green, 293 S.W.3d at 514. There are no genuine
disputes of material fact in this case, and, therefore, the issues presented to this Court may
be decided as a matter of law.
III.
Before addressing the substantive question regarding the application of the statute of
limitations, we turn our attention to B & B Enterprises’s cause of action. B & B Enterprises
is seeking to recover monetary damages based on the allegedly illegal manner in which the
City of Lebanon defendants administered the city’s land use planning ordinances and rules.
In common parlance, B & B Enterprises is asserting a “regulatory taking” claim.5 More
specifically, B & B Enterprises is asserting a temporary regulatory taking claim because it
is not alleging that the City of Lebanon defendants permanently deprived it of all beneficial
use of its property.
Temporary regulatory takings claims based on the Takings Clause of the Fifth
Amendment to the United States Constitution are governed by the principles set out in Penn
Cent. Transp. Co. v. City of New York, 438 U.S. 104, 123-28 (1978). See Tahoe-Sierra Pres.
Council, Inc. v. Tahoe Reg’l Planning Agency, 535 U.S. 302, 334-36 (2002). However, this
Court has not yet held that a regulatory takings claim can be asserted under Article I, Section
21 of the Tennessee Constitution. Currently, we have recognized only two types of takings
claims – physical occupation takings claims and nuisance-type takings claims. Edwards v.
Hallsdale-Powell Util. Dist., 115 S.W.3d 461, 465 (Tenn. 2003); Jackson v. Metro. Knoxville
Airport Auth., 922 S.W.2d 860, 862 (Tenn. 1996). Regulatory takings do not fall into either
of these categories. Consol. Waste Sys., LLC v. Metro. Gov’t of Nashville & Davidson Cnty.,
No. M2002-02582-COA-R3-CV, 2005 WL 1541860, at *12 (Tenn. Ct. App. June 30, 2005)
5
A regulatory taking results when a governmental regulation places such a burdensome restriction
on a landowner’s use of its property that the government has for all intents and purposes “taken” the
property. In 1922, a near unanimous United States Supreme Court noted that a regulation that goes “too far”
is a taking of property, presumably as much as a physical taking or invasion of property is a taking.
Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415-16 (1922); see also 11 Eugene McQuillan, Law of
Municipal Corporations § 32.31, at 582-86 (3d ed. rev. vol. 2010); David L. Callies, Takings: An
Introduction and Overview, 24 U. Haw. L. Rev. 441, 443 (2002).
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(No Tenn. R. App. P. 11 application filed).6 Because of its procedural posture, this case is
not the proper vehicle for deciding the existence or scope of a regulatory takings claim under
Article I, Section 21. For the purpose of this opinion, it will be sufficient to presume that
Article I, Section 21 is broad enough to include regulatory takings claims.
IV.
The applicable statute of limitations for a temporary regulatory taking claim would
be the statute of limitations found in Tenn. Code Ann. § 29-16-124 (2000). This statute
provides:
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; saving, however, to unknown owners and
nonresidents, twelve (12) months after actual knowledge of such
occupation, not exceeding three (3) years, and saving to persons
under the disabilities of infancy and unsoundness of mind,
twelve (12) months after such disability is removed, but not
exceeding ten (10) years.
Even though this statute is couched in terms of physical takings, it applies equally to all
takings claims. STS/BAC Joint Venture v. City of Mt. Juliet, No.
M2003-00171-COA-R3-CV, 2004 WL 2752809, at *8 (Tenn. Ct. App. Dec. 1, 2004), perm.
app. dismissed (Tenn. Apr. 29, 2005).
For the purposes of Tenn. Code Ann. § 29-16-124, a “taking” occurs when the “injury
to . . . property . . . reasonably appears . . . to be a permanent injury rather than a temporary
one.” Knox Cnty. v. Moncier, 224 Tenn. 361, 367, 455 S.W.2d 153, 156 (1970).
Landowners must be vigilant and must file their suit within one year after they know or
reasonably should have known that a taking has occurred. Osborne Enters., Inc. v. City of
Chattanooga, 561 S.W.2d 160, 166 (Tenn. Ct. App. 1977). In the context of a claim such
as the one B & B Enterprises has asserted in this case, the Court of Appeals has held that “the
triggering event [for the running of the statute of limitations] . . . is the date the landowner
knew that the government was depriving it of the economic use of its property.” STS/BAC
Joint Venture v. City of Mt. Juliet, 2004 WL 2752809, at *9.
6
Inverse condemnation claims are likewise limited to physical takings. The chief difference between
a condemnation claim and an inverse condemnation claim is that the former is initiated by a government
entity while the latter is initiated by the landowner. See Tenn. Code Ann. § 29-20-105 (2000).
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Courts confronted with a defense predicated on the running of the statute of
limitations in Tenn. Code Ann. § 29-16-124 must look to the “facts in the particular case
under consideration” to determine when the statute of limitations began to run. Knox Cnty.
v. Moncier, 224 Tenn. at 367, 455 S.W.2d at 156. In this case, it is undisputed that B & B
Enterprises knew on February 26, 2002, that the Planning Commission had declined for the
second time to approve the plans for Phases Two and Three of the Chapparal Subdivision.
This unequivocal action by the Planning Commission plainly put B & B Enterprises on notice
that the actions of the City of Lebanon defendants had frustrated its reasonable, investment-
backed expectations regarding the development of this subdivision.
B & B Enterprises does not dispute that it had actual notice of the Planning
Commission’s February 26, 2002 refusal to approve its plans for Phases Two and Three.
However, it insists that the Planning Commission’s action should not be considered
“permanent” or “complete” for the purpose of Tenn. Code Ann. § 29-16-124 because it
sought judicial review of the Planning Commission’s decision. Instead, it insists that the
action became complete on December 16, 2004, when the Court of Appeals filed its opinion
affirming the trial court’s conclusion that the Planning Commission had acted arbitrarily and
capriciously.
We disagree that B & B Enterprises’s decision to pursue judicial review of the
Planning Commission’s February 26, 2002 decision did not prevent the Planning
Commission’s action from being “permanent” or “final” for the purpose of Tenn. Code Ann.
§ 29-16-124. The focus here is on the actions of the Planning Commission, not the
subsequent actions of the courts which would have been unknown in February 2002. The
United States Supreme Court made this precise point when it held that “[a] final decision by
the responsible state agency informs the constitutional determination whether a regulation
has deprived a landowner of ‘all economically beneficial use’ of the property, or defeated the
reasonable investment-backed expectations of the landowner to the extent that a taking has
occurred . . . .” Palazzolo v. Rhode Island, 533 U.S. 606, 618 (2001) (citations omitted).
We agree with the United States Supreme Court. The Planning Commission’s action
on February 26, 2002, put B & B Enterprises on notice that its reasonable investment-backed
expectations for the use of its property had been frustrated. Regardless of the eventual
outcome of the judicial proceedings, the Planning Commission began interfering with B &
B Enterprises’s economically beneficial use of its property by no later than February 26,
2002. While the duration of the judicial proceedings might later be relevant to determining
the length of time that B & B Enterprises was denied the use of its property, it is not relevant
to determining when B & B Enterprises was put on notice that a taking had occurred.
Therefore, we hold that Tenn. Code Ann. § 29-16-124’s one-year statute of limitations on
B & B Enterprises’s claim began to run on February 26, 2002.
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V.
B & B Enterprises argues that even if the statute of limitations in Tenn. Code Ann.
§ 29-16-124 began to run on February 26, 2002, considerations of public policy favor tolling
the statute of limitations under the facts of this case because it pursued judicial review of the
Planning Commission’s decision in a timely manner. Specifically, it falls back on the
doctrines of exhaustion of remedies, ripeness, and equitable tolling. We have concluded that
these doctrines provide no comfort to B & B Enterprises.
A.
The courts fashioned the jurisprudential “exhaustion of administrative remedies”
doctrine in deference to administrative agencies. This doctrine, which prompts courts to stay
their hand until an administrative proceeding is completed, Bailey v. Blount Cnty. Bd. of
Educ., 303 S.W.3d 216, 235 (Tenn. 2010), reflects the courts’ acknowledgment that
administrative agencies have special expertise with regard to the subject matter of the
proceedings before them. Colonial Pipeline Co. v. Morgan, 263 S.W.3d 827, 839 (Tenn.
2008); Southern Ry. v. State Bd. of Equalization, 682 S.W.2d 196, 199 (Tenn. 1984); Martin
v. Sizemore, 78 S.W.3d 249, 269 (Tenn. Ct. App. 2001). Accordingly, in most
circumstances, the courts deem it appropriate to permit administrative agencies to develop
their final position with regard to the matters before them prior to undertaking to review the
agency’s decision. By doing so, the courts not only demonstrate their respect for the
administrative process, they also assure the existence of a complete administrative record
should judicial review of the agency’s decision be sought. Colonial Pipeline Co. v. Morgan,
263 S.W.3d at 838-39.
The exhaustion doctrine has no application to this case because the actions of the
administrative agency – here the Planning Commission – were completed on February 26,
2002. No further deference to the agency was required after that time. The administrative
proceedings ended on February 26, 2002, and the judicial proceedings began when B & B
Enterprises filed its petition for common-law writ of certiorari. The judicial proceedings
were not simply a continuation of the administrative proceedings. Their purpose was to
determine, based on the completed record of the proceedings before the Planning
Commission, whether the Planning Commission had exceeded its jurisdiction or had acted
illegally, fraudulently, or arbitrarily. Hoover Motor Exp. Co. v. R.R. & Pub. Utils. Comm’n,
195 Tenn. 593, 604, 261 S.W.2d 233, 238 (1953); Powell v. Parole Eligibility Review Bd.,
879 S.W.2d 871, 873 (Tenn. Ct. App. 1994).
The doctrine favoring the “exhaustion of administrative remedies” prior to the
commencement of judicial proceedings is intended to promote the completion of
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administrative proceedings. It has no application, and the interests it promotes are not
furthered, but employing it as a tolling device to prevent the application of a statute of
limitations. Because the Planning Commission’s proceedings were plainly completed on
February 26, 2002, the doctrine cannot save B & B Enterprises from the running of the
statute of limitations in this case.
B.
B & B Enterprises next argues that the statute of limitations in Tenn. Code Ann. § 29-
16-124 should be tolled because its takings claim was not ripe. It insists that its claim did
not become ripe until the Court of Appeals filed its opinion on December 16, 2004, because
the full extent of its damages could not have been ascertained until that time.
Doctrines such as ripeness assist the courts in determining whether a particular case
presents a justiciable legal issue. Norma Faye Pyles Lynch Family Purpose LLC v. Putnam
Cnty., 301 S.W.3d 196, 203 (Tenn. 2009). The ripeness doctrine focuses on whether the
dispute has matured to the point that it warrants a judicial decision. The central concern of
the ripeness doctrine is whether the case involves uncertain or contingent future events that
may or may not occur as anticipated or, indeed, may not occur at all. See Lewis v. Cont’l
Bank Corp., 494 U.S. 472, 479-80 (1990). It is closely related to the “exhaustion of
administrative remedies” doctrine. 13B Charles A. Wright et al., Federal Practice and
Procedure § 3532.1.1 (3d ed. 2008).
Determining whether a particular dispute is ripe entails a two-part inquiry. The first
question is whether the issues in the case are ones appropriate for judicial resolution. The
second question is whether the court’s refusal to act will cause hardship to the parties.
Abbott Labs. v. Gardner, 387 U.S. 136, 149 (1967), partially superseded by statute, Clean
Air Amendments of 1970, Pub. L. No. 91-604, 84 Stat. 1676 (codified as amended at 42
U.S.C.S. § 7607 (1997 & 2010 Supp.)); accord Martin v. Washmaster Auto Ctr., Inc., No.
01-A-01-9305-CV00224, 1993 WL 241315, at *2 (Tenn. Ct. App. July 2, 1993) (No Tenn.
R. App. P. application filed). The court will decline to act “where there is no need for the
court to act or where the refusal to act will not prevent the parties from raising the issue at
a more appropriate time.” AmSouth Erectors, LLC v. Skaggs Iron Works, Inc., No.
W2002-01944-COA-R3-CV, 2003 WL 21878540, at *6 (Tenn. Ct. App. Aug. 5, 2003) (No
Tenn. R. App. P. 11 application filed) (quoting Window Gallery of Knoxville v. Davis, No.
03A01-9906-CH-00225, 1999 WL 1068730, at *3 (Tenn. Ct. App. Nov. 4, 1999) (No Tenn.
R. App. P. application filed)) (emphasis omitted).
This dispute became ripe on February 26, 2002. On that date, B & B Enterprises
knew that the Planning Commission had interfered with its reasonable investment-backed
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expected use of Phases Two and Three of the Chapparal Subdivision. It also knew that it
started to incur economic damages. Thus, by February 26, 2002, B & B Enterprises was
aware of (1) the occurrence of an allegedly wrongful act, (2) the identity of the actor who had
committed the allegedly wrongful act, and (3) the fact that it had been damaged by the
alleged wrongful act.
In other contexts, it has become axiomatic that a statute of limitations is not tolled
until the injured party knows the full extent of its damages. Shadrick v. Coker, 963 S.W.2d
726, 733 (Tenn. 1998); Wyatt v. A-Best Co., 910 S.W.2d 851, 855 (Tenn. 1995). The same
rule applies in this case. Adopting the interpretation of the ripeness doctrine advocated by
B & B Enterprises would frustrate the purpose of the statute of limitations which is to ensure
fairness and justice by preventing undue delay in filing lawsuits. Tigg v. Pirelli Tire Corp.,
232 S.W.3d 28, 32-33 (Tenn. 2007); Quality Auto Parts Co. v. Bluff City Buick Co., 876
S.W.2d 818, 820 (Tenn. 1994). B & B Enterprises had a justiciable claim on February 26,
2002 and was privy to all the information needed to pursue that claim. Accordingly, from
and after February 26, 2002, a concrete enough controversy existed between B & B
Enterprises and the City of Lebanon defendants to obviate the application of the ripeness
doctrine.
C.
Finally, B & B Enterprises argues that equitable estoppel should toll the statute of
limitations. Equitable estoppel only applies where “the opposing party ha[s] engaged in
misconduct.” Norton v. Everhart, 895 S.W.2d 317, 321 (Tenn. 1995). This misconduct
consists of “attempting to gain an unfair advantage by maintaining inconsistent legal
positions.” Cracker Barrel Old Country Store, Inc. v. Epperson, 284 S.W.3d 303, 315 (Tenn.
2009). In other words, the party to be estopped must have engaged in:
(1) Conduct which amounts to a false representation or
concealment of material facts, or, at least, which is calculated to
convey the impression that the facts are otherwise than, and
inconsistent with, those which the party subsequently attempts
to assert; (2) Intention, or at least expectation that such conduct
shall be acted upon by the other party; [and] (3) Knowledge,
actual or constructive[,] of the real facts.
Cracker Barrel Old Country Store, Inc. v. Epperson, 284 S.W.3d at 315-16 (quoting Werne
v. Sanderson, 954 S.W.2d 742, 745 (Tenn. Ct. App. 1997)).
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The fact that the Planning Commission may have acted arbitrarily or capriciously
when it declined to approve the plats for Phases Two and Three of the Chapparal Subdivision
is not the sort of “misconduct” that triggers the application of equitable estoppel. This record
lacks any evidence that the City of Lebanon defendants ever misled B & B Enterprises or
took inconsistent legal positions during the course of either the administrative or judicial
proceedings. Accordingly, we find no factual basis sufficient to trigger the application of the
doctrine of equitable estoppel in this case.
VI.
In summary, we find that B & B Enterprises’s claim against the City of Lebanon
defendants accrued on February 26, 2002. We also find that, in the absence of the
appropriate application of any tolling doctrines, the statute of limitations applicable to B &
B Enterprises’s takings claim, Tenn. Code Ann. § 29-16-124, expired in February 2003 and,
therefore, that B & B Enterprises’s complaint filed on December 2, 2005 was not timely as
a matter of law. Accordingly, we affirm the judgment of the Court of Appeals and remand
the case to the trial court with directions to enter an order dismissing B & B Enterprises’s
complaint. We tax the costs of this appeal, jointly and severally, to B & B Enterprises of
Wilson County, LLC and Hal Bone for which execution, if necessary, may issue.
______________________________
WILLIAM C. KOCH, JR., JUSTICE
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