Riverland, LLC v. City of Jackson, Tennessee

11/09/2018
IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
September 12, 2018 Session

RIVERLAND, LLC v. CITY OF JACKSON TENNESSEE

Appeal from the Circuit Court for Madison County
No. C-15-165 Kyle Atkins, Judge
___________________________________

No. W2017-01464-COA-R3-CV
___________________________________

Appellant sued the City of Jackson, Tennessee, after Appellant’s commercial building
was damaged by flooding. Appellant stated claims, under the Governmental Tort
Liability Act, for temporary and permanent nuisance, trespass, negligence, and gross
negligence. Appellant also sought relief for inverse condemnation and equitable relief
under a theory of nuisance. On a grant of summary judgment, the trial court dismissed
the GTLA claims, finding that the City’s immunity to suit was not removed. The trial
court also granted summary judgment to the City on the inverse condemnation and
nuisance claims. Discerning no error, we affirm and remand.

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

KENNY ARMSTRONG, J., delivered the opinion of the court, in which J. STEVEN
STAFFORD, P.J., W.S., and ARNOLD B. GOLDIN, J., joined.

Todd D. Siroky, Jackson, Tennessee, for the appellant, Riverland, LLC.

John D. Burleson and Matthew R. Courtner, Jackson, Tennessee, for the appellee, City of
Jackson, Tennessee.

OPINION

I. Background

On March 15, 2013, Agape Child & Family Services, Inc. (“Agape”) sold real
property located at 77 Executive Drive, Jackson, Tennessee 38305 (“the Property”) to
Appellant Riverland, LLC (“Riverland”). Brad Hayes is the sole owner of Riverland.
The Property is located within the Madison Square Business Park (“MSBP”). A private
developer began building the MSBP in the 1970s. Appellee City of Jackson, Tennessee
(“the City”) did not design or construct the MSBP, nor did it design or construct the
drainage structures on the Property. The City’s involvement in the MSBP was limited to
confirming that the construction plans and final plat satisfied the City’s minimum
standards in place at the time. The City may have also issued building permits and
certificates of occupancy and compliance.

There is a commercial office building on the Property that Riverland owns and
leases to a third party. A drainage ditch runs along the northern boundary of the
Property, and a metal drainage pipe runs along the western boundary of the Property.
The drainage ditch and the metal drainage pipe intersect at the northwest corner of the
Property. The metal drainage pipe carries storm water from the northwest corner of the
Property to the southwest corner of the Property. Riverland alleges that the City has a
right-of-way and an easement for utilities and drainage along both the northern and
western boundaries of the Property; the City disputes this.

On August 8, 2014, after heavy rainfall, the Property flooded, and storm water
entered the commercial building. On August 18, 2014, the Property again flooded after
heavy rainfall. Both parties agree that the metal drainage pipe is deteriorating. Riverland
argues that the City owns the drainage infrastructure that caused the flooding because the
City allegedly holds an easement and right-of-way on the Property. Riverland further
argues that the City has a responsibility to maintain and repair the drainage infrastructure
but has failed to do so. The City denies that it has an easement or right-of-way on the
Property. The City also denies that it owns or is in any way responsible for the drainage
infrastructure on Riverland’s Property. The City acknowledges that it accepted
maintenance of both the streets in the MSBP and the drainage improvements within the
roads’ right-of-way after the developer completed building the MSBP. However, the
City argues that it never accepted maintenance of the drainage structures beyond the
roads’ right-of-way. Further, the City argues that it never performed any maintenance on
the Property’s drainage structures after they were built by the private developer.1

On May 18, 2015, Riverland filed its Complaint in the Madison County Circuit
Court (“trial court”), seeking injunctive relief and money damages from the City.
Riverland alleged that the City was responsible for damages to the Property because it
owned the drainage structures on the Property and failed to maintain and repair them.
Riverland asserted claims against the City under the Governmental Tort Liability Act
(“GTLA”) for temporary and permanent nuisance, trespass, negligence, and gross
negligence. Riverland also asserted a claim of inverse condemnation and an equitable
claim to abate the nuisance. The City filed its answer on June 29, 2015.

1
In 2011, when Agape still owned the Property, it reported to the City that the Property had a
history of flooding. The City examined the issue, discovered that the metal drainage pipe was
deteriorating, and advised Agape that it would not repair the metal drainage pipe because it was located
on private property.
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 On December 28, 2016, the City filed a Motion for Summary Judgment as to all
claims. By order of June 21, 2017, the trial court granted the City’s motion and found
that Riverland failed to establish an essential element of its claim. Specifically, the trial
court found that immunity had not been removed under sections 29-20-204(a), 29-20-
205(1), and 29-20-205(3) of the GTLA. Riverland appealed. In February 2018, this
Court dismissed the appeal for lack of a final judgment because the trial court did not
adjudicate Riverland’s claims for equitable relief on the grounds of nuisance, inverse
condemnation or trespass. Based on the dismissal, the City filed its Motion for
Supplemental Ruling on Defendant’s Motion for Summary Judgment. By order of April
9, 2018, the trial court entered an amended order granting the City’s motion for summary
judgment as to the remaining claims.2 The order is now final and appealable under
Tennessee Rule of Appellate Procedure 3.

II. Issue

Riverland raises six issues for review, which we restate as follows:

1. Whether the trial court erred when it determined that the City’s immunity under
the GTLA had not been removed.

2. Whether the trial court erred when it granted the City’s motion for summary
judgment as to Riverland’s inverse condemnation claim.

3. Whether the trial court erred when it granted the City’s motion for summary
judgment as to Riverland’s claim for equitable relief.

III. Standard of Review

Riverland appeals the grant of summary judgment on all of its claims. A trial
court’s decision to grant a motion for summary judgment presents a question of law.
Therefore, our review is de novo with no presumption of correctness afforded to the trial
court’s determination. Bain v. Wells, 936 S.W.2d 618, 622 (Tenn. 1997). This Court
must make a fresh determination that all requirements of Tennessee Rule of Civil
Procedure 56 have been satisfied. Abshure v. Methodist Healthcare-Memphis Hosps.,
325 S.W.3d 98, 103 (Tenn. 2010). When a motion for summary judgment is made, the
moving party has the burden of showing that “there is no genuine issue of material fact
and the moving party is entitled to judgment as a matter of law.” Tenn. R. Civ. P. 56.04.
The Tennessee Supreme Court has explained that when the party moving for summary
judgment does not bear the burden of proof at trial, “the moving party may satisfy its

2
This order was based on the trial court’s oral ruling, which was incorporated into its amended
order.
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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.” Rye v. Women’s Care Center of Memphis, MPLLC, 477 S.W.3d 235, 264
(Tenn. 2015) (italics omitted). Furthermore,

“When 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., [Ltd. 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.

Rye, 477 S.W.3d at 265
IV. Analysis

A. Governmental Tort Liability Act

Riverland appeals the trial court’s grant of summary judgment as to the following
tort claims: (1) negligence (including gross negligence); (2) nuisance (temporary and
permanent); and (3) trespass. The GTLA provides general immunity from tort liability
for all governmental entities. Immunity is removed, and a governmental entity may be
sued in tort, only in specific and limited circumstances. As the Tennessee Supreme Court
explained in Lucius v. City of Memphis, 925 S.W.2d 522 (Tenn. 1996):

The doctrine of sovereign immunity, which has been a part of
Tennessee law for more than a century, provides that suit may not be
brought against a governmental entity except to the extent that the
governmental entity has consented to be sued. Cruse v. City of Columbia,
922 S.W.2d 492 (Tenn. 1996). The doctrine was codified in 1973 when the
legislature enacted the GTLA. The GTLA governs claims against counties,
municipalities, and other local governmental agencies, but does not apply to
state government, its agencies, and departments. See Tenn. Dept. of
Mental Health & Mental Retardation v. Hughes, 531 S.W.2d 299, 300
(Tenn. 1975). Specifically, the Act provides that “[e]xcept as may be
otherwise provided in this chapter, all governmental entities shall be
immune from suit for any injury which may result from the activities of
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 such governmental entities wherein such governmental entities are engaged
in the exercise and discharge of any of their functions . . . .” Tenn. Code
Ann. § 29-20-201(a). The Act then removes immunity under certain
circumstances.

Lucius, 925 S.W.2d at 525. Therefore, in order for the City to be liable under the GTLA,
it must first have waived immunity to suit. We now turn to that question. In finding that
the City’s immunity was not waived, the trial court relied on and discussed three sections
of the GTLA, § 29-20-204(a), § 29-20-205(1), and § 29-20-205(3), and we will address
all three GTLA provisions on which the trial court relied.3

1. T.C.A. § 29-20-204: Dangerous Structures

Under Tennessee Code Annotated section 29-20-204(a),

[i]mmunity from suit of a governmental entity is removed for any injury
caused by the dangerous or defective condition of any public building,
structure, dam, reservoir or other public improvement owned and
controlled by such governmental entity.

Tenn. Code Ann. § 29-20-204(a) (emphasis added).

While Riverland concedes that the City never owned the Property, Riverland
argues that the City’s alleged easement and/or right-of-way “established the City’s
ownership of and responsibilities for the utilities and structures that were placed in the
easement and right-of-way.”4 The trial court disagreed concluding that

[p]ursuant to Tennessee case law, “[f]or immunity to be removed pursuant
to the GTLA, the location that allegedly caused the accident must be owned
and controlled by the government entity being sued.” Watts v. Morris, No.
W2008-00896-COA-R3-CV, 2009 WL 1228273, at *5 (Tenn. Ct. App.
May 6, 2009). Although it is disputed whether [the City] has an easement
on the property, an easement does not constitute ownership for purposes of
Tennessee law. See Cumulus Broad, Inc. v. Shim, 226 S.W.3d 366, 379
(Tenn. 2007) (stating “[a] prescriptive easement does not constitute
ownership and the right acquired is limited to the specific use.”);
Vanderbilt Univ. v. Williams, 280 S.W. 689, 692 (Tenn. 1926) (relaying
“[a] man cannot have an easement in his own lands[”]); Branham v. Metro.
3
Despite the fact that the trial court discussed three sections of the GTLA in its order, Riverland
failed to cite to any GTLA statute in its brief.
4
The City disputes that it has an easement and/or right-of-way over Riverland’s Property.
Because the question of whether the City holds an easement and/or right-of-way is not dispositive, and
because the trial court did not answer this question, we will not address it in this Opinion.
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 Gov’t of Nashville-Davidson Cty., Tennessee, No. M2015-00455-COA-
R3-CV, 2016 WL 4566095, at *10 (Tenn. Ct. App. Aug. 30, 2016) (“A
right-of-way is not an ownership interest”). Since an easement is not
considered ownership and ownership is requisite to removing immunity
under TCA Section 29-20-204(a), [Riverland] cannot remove [the City]’s
immunity under this section. There was not an “injury caused by the
dangerous and defective condition of any . . . public improvement owned
and controlled” by the City of Jackson.

Turning to the record, it is clear that the City did not own the Property and was not
involved in the MSBP’s construction. Scott Chandler, who oversees the City’s
Engineering Department, stated in his affidavit, which was attached as an exhibit to the
City’s motion for summary judgment:

9. Based on the City’s records and practices, the City was not involved in
the design or construction of [the] MSBP or the building on the Property.
In particular, the City was not involved in the design or construction of the
[d]itch or the [p]ipe. The City did not install the [p]ipe. The City does not
own the [p]ipe or the [d]itch.

***

11. After [the] MSBP was developed, per its policy and practice, the City
accepted the streets in [the] MSBP, including the drainage improvements in
the street’s right-of-way. The City does not accept or agree to maintain the
drainage structures and improvements that extend beyond the right-of-way.
As an example, the City accepts and maintains the inlet drains on the edge
of roads in [the] MSBP, but the City does not accept the pipes that run from
the inlet to the rear of private property. The City’s policy is akin to a sewer
system. A utility provider accepts responsibility for the sewer up to the
meter. As such, the line that runs from the meter to the home/building is
the responsibility of the property owner.

In its response to the City’s statement of undisputed material facts, Riverland admits that
the City does not own the Property. However, Riverland alleges that the City is
responsible for the metal drainage pipe because it was installed underneath the land
where the City had an alleged utility and drainage easement and right-of-way.

An easement is “an interest in property that confers on its holder a legally
enforceable right to use another’s property for a specific purpose.” Hall v. Pippin, 984
S.W.2d 617, 620 (Tenn. Ct. App. 1998); see also Fowler v. Wilbanks, 48 S.W.3d 738,
740 (Tenn. Ct. App. 2000); Pevear v. Hunt, 924 S.W.2d 114, 115 (Tenn. Ct. App. 1996).
However, “an easement is not an interest in the ownership of the underlying real
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property.” Gore v. Stout, No. M2006-02111-COA-R3-CV, 2008 WL 450597, at *11
(Tenn. Ct. App. Feb. 19, 2008). The Middle Section of this Court was faced with a
similar issue in Yates v. Metro. Gov’t of Nashville & Davidson Cty., 451 S.W.2d 437
(Tenn. Ct. App. 1969). In Yates, a private firm developed land behind the plaintiffs’
property; in 1962, the firm “built streets, laid water lines, and built a pumping station near
[the] plaintiffs’ southwest corner.” Id. at 439. A twenty foot utility easement, which was
made into a driveway, extended from the pumping station to the street. Id. A ditch or
ditches surrounding the driveway intercepted the flow of surface water and diverted the
water onto the plaintiffs’ property. Id. Post-development, the pumping station and pipes
in the subdivision were conveyed to Nashville Suburban Utility District (“Utility
District”). Id. Later, the Utility District used the driveway for access to the pumping
station, but never altered it. Id. In 1964, the Department of Water and Sewage Services
of the Metropolitan Government of Nashville and Davidson County (“Metro”) acquired
the entire operations of the Utility District. Id. Metro used the driveway, but did not
alter it. Id. In 1964, the plaintiffs experienced flooding of their house after a heavy rain.
Id. The plaintiffs argued that Metro was liable for their flood damage because, inter alia,
Metro was “obligated to maintain the easement because it was ‘held by the municipality’
in trust for the public.” Id. at 441. Thus, the issue presented to the Middle Section was:

Is a municipal corporation liable for damages where it is operating a water
system in an easement dedicated to the public for that purpose where the
surface of the easement constitutes a nuisance and damages a neighboring
property owner when it appears that the original condition of the easement
exists because of the prior acts of third persons who may or may not be
contractually related to the municipal corporation.

Id. at 440.

The Middle Section concluded that Metro was not liable for the plaintiffs’ water
damages. In reaching this conclusion, the Middle Section discussed easements and the
rights given to one who holds an easement. The Court explained that “[a]n easement
does not consist of a quantity of land, but merely the privilege to pass over certain land.
Thus[,] the use of an easement does not entail general supervision or maintenance of the
land over which it passes, but only to such extent as is necessary for the exercise of the
privileges of the easement.” Id. at 440-41. The Court further explained that

[t]he holder of an easement has the right to use or alter the affected
premises only as reasonably necessary for the use of the easement. Such
holder has no right to exclude others from the use of or alteration of the
premises so long as there is no interference with the easement privilege.
For this reason, the holder of an easement could not be reasonably required
to perform any maintenance, repairs or alterations upon the property over
which the easement exists, unless such holder has made such maintenance,
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 repairs, or alterations necessary by the manner of [h]is use of the easement.
Specifically, the Utility District and its successor, [Metro], had the right to
come and go along the driveway, but they had no right or obligation to
make any repairs or changes in the real estate unless their use of the
easement made such repairs or changes necessary.

***

A sound[] rule . . . that [has been] employed in the many authorities which
have been studied, is that the holder of the easement is responsible for
proper maintenance of [w]hat he puts on the easement to facilitate his use
of the easement.

Id. at 441.

Assuming, arguendo, that the City held an easement, the City had the right to use
the easement but had no obligation to make repairs or changes along the easement unless
its use of the easement made the repairs or changes necessary. Riverland cannot show
that the City actually used the easement, much less that it caused the drainage pipes to
need repairs. To the contrary, Riverland’s entire argument is that the City abandoned the
downstream drainage structure and easement. Riverland’s argument centers around the
City’s inactivity. Because the City never took any action concerning the drainage
structures, the City was not required to maintain the pipes.

Riverland also argues that because the pipes carry public storm water, the City is
responsible for the drainage infrastructure. This issue was also addressed in Yates, to-
wit:

Plaintiffs cite many authorities for the proposition that certain
easements are held by certain public corporations for the public use, and
that such public corporations are responsible for the “maintenance of the
easement.” None of such authorities are in point for the reason that none
holds that a public utility which uses a utility easement over land thereby
undertakes to remove from such land any nuisance placed thereon by other
and previous users.

Plaintiffs insist, and cite many authorities for the proposition that
[the] owner of an easement must “keep it in proper condition” or “keep it in
repair,” but these authorities deal with situations wherein the holder of the
easement has an exclusive right to control of the property, or where
improvements or alterations are made by the holder of the easement as an
incident to the easement. It is the facilities of the easement, rather than the
ground itself which must be “kept in repair” by the holder of the easement.
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 In the present case, it is not shown that the ditches were facilities of
the easement, that is, that they were a necessary incident to the usefulness
of the easement, nor that the defendant herein had neglected to repair or
maintain them. On the contrary, plaintiffs insist that i[t] was the duty of
defendant to remove them.

Plaintiffs’ insistence in this regard is stated in their brief as follows:

“. . .” the access road built on the dedicated easement was
done so through apparent necessity to obtain the use for
which the easement was dedicated, that is, so that heavy
equipment could reach the pump house located at the bottom
of the steep hill and easement. It is the position of the
plaintiff-in-error that once such a road was built, it was the
duty of the owner to maintain the road in such a manner that
it did not become a nuisance and consequently damage
plaintiff-in-errors’ land “. . . .”

Such insistence pre-supposes, without support in the evidence, that
the ditches were a necessary part of the road as used by defendant, that
there was some failure of defendant to “maintain” the road or ditches so
that it, or they, “became a nuisance.” To the contrary, all of the evidence
indicates th[a]t the “nuisance” or diversion of wat[]er was created by Estes-
Taylor before defendant Metro. or its predecessor, the Utility District, made
any use of the easement. There is no evidence that the District or Metro., by
any negligence allowed the road or ditches to [b]ecome a nuisance.

Id. at 442.

Similarly, the evidence in our case indicates that the diversion of water onto
Riverland’s Property was created when the MSBP was developed, which was before the
City could have used the easement. There is no evidence that the City was negligent in
regard to the drainage structures, or that the City allowed the pipes to become a nuisance.
In Yates, the Middle Section explained that “[n]o authority ha[d] been cited or found
which holds the user of an easement liable for failure to remove from the territorial
bounds of the easement a nuisance which was placed or created thereon before such user
began to use such easement.” Id. at 443. The Court continued, concluding that there was
no evidence that Metro or its predecessor “performed any construction work or in any
manner created the situation complained of by plaintiffs.” Id. Here, there is no evidence
that the City performed any construction work or, in any manner, created the situation
complained of by Riverland. Therefore, we agree with the trial court that the City did not
own the drainage structures, and that an easement (if same exists), and/or right-of-way do
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not constitute ownership such that the City’s immunity would be removed under
Tennessee Code Annotated section 29-20-204(a).5

2. T.C.A. § 29-20-205: Negligent Acts or Omissions

i. Discretionary Decision

Under Tennessee Code Annotated section 29-20-205(1),

[i]mmunity from suit of all governmental entities is removed for injury
proximately caused by a negligent act or omission of any employee within
the scope of his employment except if the injury arises out of:

(1) The exercise or performance or the failure to exercise or
perform a discretionary function, whether or not the
discretion is abused;

Tenn. Code Ann. § 29-20-205(1). The term “discretionary function” is not defined in the
GTLA. However, the Tennessee Supreme Court articulated the test for determining
whether an act is discretionary in Bowers by Bowers v. City of Chattanooga, 826 S.W.2d
427 (Tenn. 1992), to-wit:

Under the planning-operational test, decisions that rise to the level of
planning or policy-making are considered discretionary acts which do not
give rise to tort liability, while decisions that are merely operational are not
considered discretionary acts and, therefore, do not give rise to immunity.
See Carlson v. State, 598 P.2d 969, 972 (Alaska 1979). The distinction
between planning and operational depends on the type of decision rather
than merely the identity of the decision maker. See id. We caution that this
distinction serves only to aid in determining when discretionary function
immunity applies; discretionary function immunity attaches to all conduct

5
Riverland also argues that, because the City violated the natural flow rule, it should be held responsible
for Riverland’s drainage issues. The natural flow rule states:

If the owner of higher lands alters the natural condition of his property so that surface
waters collect and pour in concentrated form or in unnatural quantities upon lower lands,
he will be responsible for all damages caused thereby to the possessor of the lower lands.

Zollinger v. Carter, 837 S.W.2d 613, 614-15 (Tenn. Ct. App. 1992) (internal citations omitted). There is
no evidence that the City owns or owned higher lands, which it altered, or that it caused surface waters
from higher lands to collect on Riverland’s lower land such that the City should be held responsible for
the damages. Therefore, the natural flow rule is inapplicable to this case.

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properly involving the balancing of policy considerations.

***

Under the planning-operational test, discretionary function immunity
does not automatically attach to all acts involving choice or judgment.
Such an analysis recognizes that, to some extent, every act involves
discretion. Rather, the underlying policy of governmental immunity is
better served by examining (1) the decision-making process and (2) the
propriety of judicial review of the resulting decision. Cf. Peavler v. Board
of Commissioners, 528 N.E.2d 40, 46 (Ind. 1988) (examining the nature of
the conduct, its effect on governmental operations, and the capacity of a
court to evaluate the decision).

A consideration of the decision-making process, as well as the
factors influencing a particular decision, will often reveal whether that
decision is to be viewed as planning or operational. If a particular course of
conduct is determined after consideration or debate by an individual or
group charged with the formulation of plans or policies, it strongly suggests
the result is a planning decision. These decisions often result from
assessing priorities; allocating resources; developing policies; or
establishing plans, specifications, or schedules. See id.

On the other hand, a decision resulting from a determination based
on preexisting laws, regulations, policies, or standards, usually indicates
that its maker is performing an operational act. Similarly operational are
those ad hoc decisions made by an individual or group not charged with the
development of plans or policies. These operational acts, which often
implement prior planning decisions, are not “discretionary functions”
within the meaning of the Tennessee Governmental Tort Liability Act. In
other words, “the discretionary function exception [will] not apply to a
claim that government employees failed to comply with regulations or
policies designed to guide their actions in a particular situation.” Aslakson
v. United States, 790 F.2d 688, 692 (8th Cir. 1986).

Another factor bearing on whether an act should be considered
planning or operational is whether the decision is the type properly
reviewable by the courts. The discretionary function exception “recognizes
that courts are ill-equipped to investigate and balance the numerous factors
that go into an executive or legislative decision” and therefore allows the
government to operate without undue interference by the courts. See
Wainscott v. State, 642 P.2d 1355, 1356 (Alaska 1982). Put succinctly:

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 [T]he judiciary confines itself . . . to adjudication of facts
based on discernible objective standards of law. In the context
of tort actions . . . these objective standards are notably
lacking when the question is not negligence but social
wisdom, not due care but political practicability, not
[reasonableness] but economic expediency. Tort law simply
furnishes an inadequate crucible for testing the merits of
social, political, or economic decisions.

Peavler, 528 N.E.2d at 44-45 (quoting Blessing v. United States, 447
F.Supp. 1160, 1170 (E.D. Penn. 1978)).

Bowers, 826 S.W.2d at 430-31.

Riverland argues that the City is negligent because it failed to maintain or repair
the metal drainage pipe. In order to determine whether the City was immune, under
Tennessee Code Annotated section 29-20-205(1), we must determine whether the City’s
policy not to maintain and repair drainage pipes located on private property is a planning
decision or an operational decision. The trial court found:

In this instance, the decision to not maintain the drainage pipe on
[Riverland]’s property constitutes a planning decision. The [C]ity, as a
matter of policy, does not maintain drainage pipes located on private
property. In addition, a government entity has no obligation to maintain
drainage ditches on private property. See Britton v. Claiborne Cty., 898
S.W.2d 220, 223 (Tenn. Ct. App. 1994). In so choosing to not maintain the
pipes located on private property, the City of Jackson is making a decision
to allocate its finite resources only to ditches that are owned by the [C]ity,
therefore making the decision a discretionary one. Moreover, the court is
ill-equipped to determine the soundness of the City’s policy. As a result,
the government should be allowed to act without “undue interference by the
court[].” Id. Therefore, with regard to TCA Section 29-20-205(1), the
[c]ourt finds that [Riverland] failed to establish that immunity should be
removed, since [the City]’s decision not to maintain the drainage ditch
constitutes a discretionary function under TCA Section 29-20-205(1) and
the planning-operational test used by Tennessee courts.

Turning to the record, in his affidavit, Mr. Chandler testified, in relevant part, that:

12. The City’s general policy is that no repair or maintenance work is
performed on drainage improvements on private property and that the City
did not build or install. The City lacks the manpower and financial
resources to maintain and repair all private drainage structures. The City
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 lacks the financial resources to both pay for all the repair and maintenance
work and to hire the necessary employees to perform the work.

13. Per its policy, the City has not maintained the [d]itch or the [p]ipe. No
work has been performed on the [p]ipe or the [d]itch by the City. The City
has not performed any repair or maintenance on the [p]ipe or the [d]itch
because they are on private property and were not designed or constructed
by the City.

In response to the City’s assertion that its policy is not to repair or maintain drainage
improvements on private property, which the City did not build or install, Riverland cited
the following from the City of Jackson Engineering Department’s website:

Who is responsible for maintaining storm water drainage on my
property?

Responsibility lies with the property owner, often the property line is the
center of a ditch in which case each adjacent property owner is responsible
for their half. If there is underground stormwater infrastructure (pipes)
that carries “public” water, the City is responsible unless the system was
damaged by the property owner.

When asked, during his deposition, about this statement on the Engineering Department’s
website, Mr. Chandler explained that the City recently redesigned its website and, in
doing so, transferred old information onto the new website. Mr. Chandler stated that he
did not write the answer to that question, and that the information in the answer was
incorrect and not aligned with current policy and procedure. Therefore, after the answer
was brought to Mr. Chandler’s attention, the website was revised.

Riverland also relies on the deposition testimony of Mr. George Barnes, the City’s
Superintendent of Stormwater Operations, to show that the City had previously repaired
or replaced storm water drainage pipes located on private property that convey public
water:

Q: Is it the City’s policy to or was it in 2014 -- to repair or replace
stormwater drainage pipes that are located underground on private property
that convey public water?

A: I don’t make policy or have any dealings with policy.

Q: Well, have you, as the Stormwater Superintendent of Stormwater
Operations, have you, or your crew, sent out employees with the City of

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 Jackson to repair or replace stormwater drainage pipes that are located on
private property that convey public water before?

A: Yes, sir.

Importantly, Mr. Barnes admitted that he does not participate in developing the City’s
policy regarding drainage structures on private property. Simply because he sent a crew
to repair or replace storm water drainage pipes that are located on private property does
not establish that this is the City’s policy. Although Mr. Barnes admitted that in the past
he sent someone to perform maintenance work on private property, he did not admit that
his unilateral decision was consistent with the City’s policy. On the contrary, this use of
a city crew for such work was in contravention of the City’s policy, as explained by Mr.
Chandler in his affidavit. Additionally, Mr. Barnes explained that, to his knowledge, the
City had never performed maintenance on the drainage structures on the Property.

Despite the dispute as to the City’s stated policy, as is relevant to removal of
GTLA immunity, Riverland presented no evidence to demonstrate that the City’s policy
(whatever it is) is an operational decision. Specifically, Riverland presented no evidence
to refute Mr. Chandler’s affidavit on this issue. Mr. Chandler explained that the reason
for the City’s policy is that the City “lacks the manpower and financial resources to
maintain and repair all private drainage structures.” Accordingly, the decision to create
this policy resulted from “assessing priorities” and “allocating resources.” Bowers, 826
S.W.2d at 431. This fact demonstrates that the policy was the result of a decision-making
process; as such, the City’s policy is a planning or policy-making decision. See id.
Therefore, the policy is a discretionary act for which immunity is not removed. See id.
As both the Bowers Court and the trial court articulated, we recognize that we are “ill-
equipped to investigate and balance the numerous factors that go into an executive or
legislative decision” and we should allow the City to operate without our undue
influence. Id. (quoting Wainscott, 642 P.2d at 1356). From the record, we cannot
conclude that the City’s immunity is removed under Tennessee Code Annotated section
29-20-205(1).

ii. Issuance of Building Permits

Under Tennessee Code Annotated section 29-20-205(3),

[i]mmunity from suit of all governmental entities is removed for injury
proximately caused by a negligent act or omission of any employee within
the scope of his employment except if the injury arises out of:

(3) The issuance, denial, suspension or revocation of, or by
the failure or refusal to issue, deny, suspend or revoke, any
permit, license, certificate, approval, order or similar
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 authorization;

Tenn. Code Ann. § 29-20-205(3). Turning to the record, the trial court concluded:

. . . [The City] cannot be held liable for the issuance of building permits for
the development of [Riverland]’s land or for the development of the
surrounding parcels. TCA Section 29-20-205(3) states that immunity is not
removed for negligent acts if the injury arises out of “[t]he issuance [. . .] of
[. . .] any permit [. . .].” While the [C]ity may have issued building permits
that left inadequate drainage on [Riverland]’s property, this cannot be a
basis for liability.

Riverland relies on its expert, Mr. Kevin Gangaware’s, affidavit testimony for its
argument that the City “consented to the partial abandonment and relocation of its
drainage infrastructure.” Specifically, Riverland argues that because the City consented
to the relocation of the drainage infrastructure, it should be responsible for it. It appears
from the exhibits attached to Mr. Gangaware’s affidavit that the City’s “consent” to the
“partial abandonment and relocation of its drainage infrastructure” was simply the City
approving the MSBP’s construction plat. The exhibits demonstrate that the City did not
develop the MSBP. Rather, private developers developed the MSBP with the help of
private consultants and a private construction company. As specified in Tennessee Code
Annotated section 29-20-205(3), the City retains immunity for “injury proximately
caused by a negligent act or omission . . . [that] arises out of . . . the issuance . . . of . . .
any permit, license, certificate, approval, order or similar authorization.” Tenn. Code
Ann. § 29-20-205(3); see Miller v. City of Brentwood, 548 S.W.2d 878, 883 (Tenn. Ct.
App. 1977) (“[N]o right of action is recognized against a municipality for issuing a
permit for construction in accordance with existing laws and regulations.”). Therefore,
the City’s immunity is not removed merely because it approved the MSBP’s construction
plat.

Because the City’s immunity is not removed under the GTLA, we affirm the trial
court’s grant of summary judgment as to the tort claims of negligence, including gross
negligence, willful and reckless conduct, nuisance (both temporary and permanent), and
trespass.

B. Inverse Condemnation

Riverland also appeals the trial court’s grant of summary judgment as to its
inverse condemnation claim. Riverland brought this claim under Tennessee Code
Annotated section 29-16-123, et seq. and Article I, section 21 of the Tennessee
Constitution. The Tennessee Supreme Court discussed inverse condemnation claims in
Edwards v. Hallsdale-Powell Util. Dist. Knox Cty., Tenn., 115 S.W.3d 461 (Tenn.
2003), to-wit:
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 The Tennessee Constitution states 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.” Tenn. Const. art. I, § 21. This constitutional provision
recognizes the governmental right of eminent domain. The government is
prohibited, however, from taking property for private purposes and must
pay just compensation when property is taken for public use. See Jackson
v. Metro. Knoxville Airport Auth., 922 S.W.2d 860, 861 (Tenn. 1996).
The Tennessee General Assembly has implemented this provision by its
passage of eminent domain and inverse condemnation statutes. See Tenn.
Code Ann. §§ 29-16-101 to 29-16-127; 29-17-101 to 29-17-1202.

“Inverse condemnation” is the popular description for a cause of action
brought by a property owner to recover the value of real property that has
been taken for public use by a governmental defendant even though no
formal condemnation proceedings under the government’s power of
eminent domain have been instituted. See Johnson v. City of Greeneville,
435 S.W.2d 476, 478 (Tenn. 1968). A “taking” of real property occurs
when a governmental defendant with the power of eminent domain
performs an authorized action that “destroys, interrupts, or interferes with
the common and necessary use of real property of another.” Pleasant View
Util. Dist. v. Vradenburg, 545 S.W.2d 733, 735 (Tenn. 1977). Not every
destruction or injury to property caused by governmental action, however,
constitutes a taking under article I, section 21 of the Tennessee
Constitution. See Jackson, 922 S.W.2d at 862 (citing PruneYard
Shopping Ctr. v. Robins, 447 U.S. 74 (1980)). Tennessee courts have
recognized two classifications of takings: physical occupation takings and
nuisance-type takings. See id. at 862-63.

Id. at 464-65. It is unclear whether Riverland alleges a physical taking or a nuisance
taking. However, this question is not dispositive of the issue because “to constitute a
taking under either [type,] . . . some action on the part of the governmental defendant is
required.” Id. at 466. Further, the governmental defendant’s action must be purposeful
or intentional and must result in damage to a plaintiff’s real property. Id. at 466-67.
Accordingly, the first question is whether the City performed a purposeful or intentional
act that resulted in damage to Riverland’s Property.

Respectfully, the trial court’s order on inverse condemnation conflates the
appropriate analysis for the inverse condemnation claim with the appropriate analysis for
the discretionary function exception under the GTLA, to-wit:

. . . I don’t think that it’s an intentional act to approve the design. I think
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 that goes back to the whole operational versus – I don’t remember the two
tests. Discretionary – or operational versus planning, is that it? So it’s a
discretionary – under those – so that makes it a discretionary which does
not remove immunity.

I just don’t see – I can’t get there. So I don’t think there’s an intentional
act. I don’t think that’s been proven. I think that’s just a decision the
[C]ity has immunity for. So having that – I think if I remember from the
other order, having an easement does not remove that immunity under the
case law. . . .

So I’m going to grant the motion for summary judgment on the inverse
condemnation on that basis.

The GTLA does not apply to inverse condemnation claims. Tenn. Code Ann. § 29-20-
105 (“This chapter shall not apply to any action in eminent domain initiated by a
landowner under §§ 29-16-123 and 29-16-124 nor be construed to impliedly repeal those
statutes.”). Therefore, the discretionary function test, discussed supra, is inapplicable to
inverse condemnation claims. Despite confusing the two issues, we conclude that the
trial court correctly granted the City’s motion for summary judgment regarding
Riverland’s inverse condemnation claim. We “may affirm a judgment on different
grounds than those relied on by the trial court when the trial court reached the correct
result.” Kirk v. Kirk, 447 S.W.3d 861, 873-74 (Tenn. Ct. App. 2013) (citing Continental
Cas. Co. v. Smith, 720 S.W.2d 48, 50 (Tenn. 1986); Shutt v. Blount, 249 S.W.2d 904,
907 (Tenn. 1952); In re Estate of Jones, 183 S.W.3d 372, 378 n. 4 (Tenn. Ct. App.
2005); Shoemake v. Omniquip Int’l, Inc., 152 S.W.3d 567, 577 (Tenn. Ct. App. 2003)).

Turning to the record, Riverland relies on Mr. Gangaware’s affidavit to show the
City’s purposeful and intentional acts. Specifically, Riverland claims that the City
“partially abandoned [a] downstream drainage infrastructure, and consented to its
relocation—which changed the natural surface water flow on the vacant lot immediately
west and downstream from the Property in 1975 just before Madison Square was platted .
. . .” Riverland argues that this act caused the public storm water to drain in a different
direction, which led to the flooding of the Property. As discussed, supra, when the City
“consented” to changing the drainage infrastructure, it was merely approving the
construction and development of the MSBP. Again, the City did not develop the MSBP,
nor did it construct the drainage infrastructure within the MSBP. Contrast our case with
Branham, 2016 WL 4566095, another Court of Appeals case. In Branham, this Court
concluded that the Metropolitan Government of Nashville-Davidson County, Tennessee’s
(“Metro”) actions of clearing a ditch for the purpose of cleaning and redefining the storm
water ditch was purposeful and intentional. Id. at *6. Here, however, the City has taken
no action with regard to the drainage infrastructure on Riverland’s Property other than
approving the construction. We cannot conclude that simply approving a construction
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plat is tantamount to a purposeful and intentional act such that the City should be
responsible for Riverland’s damages under an inverse condemnation claim. Therefore,
while the trial court erred in its inverse condemnation analysis, we agree with its
conclusion to grant the City’s motion for summary judgment as to that claim. See Kirk,
447 S.W.3d at 873-74.

C. Equitable Relief

Riverland also appeals the trial court’s grant of summary judgment as to its
nuisance claim on which it sought equitable relief. A nuisance “extends to everything
that endangers life or health, gives offense to the senses, violates the laws of decency, or
obstructs the reasonable and comfortable use of property.” Pate v. City of Martin, 614
S.W.2d 46, 47 (Tenn. 1981). This Court explained the different types of nuisance claims
in Peterson v. Putnam Cty., No. M2005-02222-COA-R3-CV, 2006 WL 3007516 (Tenn.
Ct. App. Oct. 19, 2006). Essentially, a plaintiff seeking damages against a governmental
entity under a nuisance claim must travel under the GTLA. Id., at *11. However, “an
equitable action to abate a nuisance created by a governmental entity is permitted outside
[the] terms of the GTLA.” Id. (citing Paduch v. City of Johnson City, 896 S.W.2d 767,
772 (Tenn. 1995) (“A cause of action under the [GTLA] may lie for activities of a
governmental entity for which immunity has been waived even though such activities
may also be the basis for the equitable action to abate a nuisance.”); Jones v. Louisville
& Nashville R.R. Co., No. 85-134-II, 1986 WL 3435, at *3 (Tenn. Ct. App. Mar. 21,
1986) (“There is nothing in the [GTLA] which removes the inherent power of a court of
equity to abate a nuisance created by a governmental entity.”)). For Riverland to
establish the City’s liability under nuisance, it must demonstrate the following: (1) an
inherently dangerous condition; and (2) an affirmative action by the City. Dean v. Bays
Mountain Park Ass’n, 551 S.W.2d 702, 704 (Tenn. Ct. App. 1977); see also Paduch,
896 S.W.2d at 771.

The trial court granted summary judgment as to Riverland’s equitable nuisance
claim on the basis that the GTLA applied and immunity was not removed. Respectfully,
this was error. Riverland’s equitable nuisance claim was not subject to the GTLA.
Peterson, 2006 WL 3007516, at *11. However, in its brief to this Court, Riverland’s
only discussion regarding its nuisance claim for equitable relief is that the trial court erred
when it held that the GTLA applied to this claim. Riverland did not argue that there was
an inherently dangerous condition, or that the City took any affirmative action. The City,
however, argued that the undisputed proof demonstrated that there was no affirmative act
by the City. We agree. As discussed, supra, the City did not build or develop the MSBP
or the drainage structures at issue. The City was not responsible for the maintenance of
the drainage structures, nor did it undertake to maintain them. Therefore, the City took
no affirmative action. Consequently, while the trial court erred in its analysis regarding
Riverland’s claim for equitable relief, it reached the correct result in granting the City’s
motion for summary judgment as to this claim. See Kirk, 447 S.W.3d at 873-74.
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 V. Conclusion

For the foregoing reasons, we affirm the trial court’s order. The case is remanded
for such further proceedings as may be necessary and are consistent with this opinion.
Costs of the appeal are assessed against the Appellant, Riverland, LLC, and its surety, for
all of which execution may issue if necessary.

_________________________________
KENNY ARMSTRONG, JUDGE

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