CHARLES W. BERNARD and wife, )
KAREN BERNARD, )
) Williamson Chancery
Plaintiffs/Appellants, ) No. 22425
)
VS. )
) Appeal No.
HOUSTON EZELL CORPORATION, THE ) 01A01-9701-CH-00015
CITY OF BRENTWOOD, TENNESSEE and )
LAND INVESTMENT CORPORATION, )
Defendants/Appellees,
)
)
FILED
)
October 10, 1997
IN THE COURT OF APPEALS OF TENNESSEE W. Crowson
Cecil
Appellate Court Clerk
MIDDLE SECTION AT NASHVILLE
APPEAL FROM THE WILLIAMSON COUNTY CHANCERY COURT
AT FRANKLIN, TENNESSEE
HONORABLE CORNELIA A. CLARK, JUDGE
William Kennerly Burger
301 N. Spring Street, P.O. Box 398
Murfreesboro, TN 37133-0398
ATTORNEY FOR DEFENDANTS/APPELLANTS
David J. White, Jr.
WHITE & REASOR
3305 West End Avenue
Nashville, TN 37203
ATTORNEY FOR PLAINTIFFS/APPELLEE, HOUSTON EZELL CORPORATION
Van French, BPR #6922
The City of Brentwood
8307 Bridle Place
Brentwood, TN 37027
ATTORNEY FOR DEFENDANT/APPELLEE
AFFIRMED AND REMANDED
HENRY F. TODD
PRESIDING JUDGE, MIDDLE SECTION
CONCURS:
BEN H. CANTRELL, JUDGE
WILLIAM B. CAIN, SPECIAL JUDGE
CHARLES W. BERNARD and wife, )
KAREN BERNARD, )
) Williamson Chancery
Plaintiffs/Appellants, ) No. 22425
)
VS. )
) Appeal No.
HOUSTON EZELL CORPORATION, THE ) 01A01-9701-CH-00015
CITY OF BRENTWOOD, TENNESSEE and )
LAND INVESTMENT CORPORATION, )
)
Defendants/Appellees, )
)
OPINION
This suit arose out of alleged defects in the planning of a subdivision lot and defects in
the lot on which a house was built and sold to plaintiffs.
The suit against The City of Brentwood was dismissed upon a motion to dismiss or for
summary judgment. The suit against Houston Ezell Corporation, the developer of the
subdivision, was dismissed by the Trial Judge after a hearing upon the merits. The manner of
disposition of the remaining defendant, Land Investment Corporation, will be detailed hereafter.
PLEADINGS
The complaint alleged in part:
2. The Defendant HOUSTON EZELL CORPORATION
is a corporation chartered under the laws of the State of
Tennessee and doing business within Williamson County,
Tennessee. Defendant HOUSTON EZELL CORPORATION
is the developer of the above-described Brentmeade Estates
Subdivision, which includes Lot No. 156, of Section II,
Revision Number 1, of that subdivision. Plaintiffs allege and
aver that the said HOUSTON EZELL CORPORATION,
directly or through their agents, prepared information required
by both state and local development statutes and ordinances,
necessary for the submission and approval of the above-
described Brentmeade Estates Subdivision by the local
planning authority, specifically the Brentwood Planning
Commission.
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5. Included among the mandatory subdivision
regulations applicable to the above-described tract of land is
§ 506 of the Brentwood Subdivision regulations, which
provides as follows:
“Suitability of the land. The Planning Commission shall not
approve the subdivision of land if, from adequate
investigations conducted by all public agencies concerned, it
has been determined that in the best interest of the public the
site is not suitable for platting and development purposes of
the kind proposed.
Land subject to flooding and land deemed to be
topographically unsuitable shall not be platted for residential
occupancy, or for any other uses which may increase flood
hazard, endanger health, life or property, or aggravate erosion.
Such land within the plat shall be set aside for such uses as
shall not be endangered by periodic or occasional inundation
or shall not produce satisfactory living conditions.
----
5. Further §602.3 of the Brentwood Subdivision
Regulations outlines minimal requirements for proper lot
drainage within the subdivision proposed for development.
----
7. The Defendant, LAND INVESTMENT
CORPORATION, is the grantor of the real estate property.
The real estate was constructed by contractor T. J. Neumann
and Associates, although the true grantor in interest is
Defendant LAND INVESTMENT CORPORATION.
----
9. Plaintiffs CHARLES W. BERNARD and wife,
KAREN BERNARD allege and aver that, commencing
almost immediately upon their occupancy of the property,
they became aware of an unusual water accumulation problem
beneath the residence constructed upon Lot 156, manifested
periodically by the accumulation of as much as two to three
feet of water beneath the house, often inundating the central
heat and air conduits and soaking the floor joists and other
areas beneath the residence. Plaintiffs allege and aver that,
upon complaining of the propensity of the lot to frequently
flood beneath the residence, efforts were immediately
commenced by the developer HOUSTON EZELL
CORPORATION and the grantor, LAND INVESTMENT
CORPORATION, to correct the problem. Plaintiffs allege
that those corrective efforts, although providing some
temporary, mitigating relief, failed to provide a permanent,
adequate remedy. Extensive excavation around and beneath
the residence occurred in 1990 as the Defendants HOUSTON
EZELL CORPORATION and LAND INVESTMENT
CORPORATION understood more dramatic efforts to solve
the water accumulation problems. Those extensive efforts in
1990 provided some abatement to the problem, although the
relief was temporary in nature, and proved ultimately to be
unsatisfactory.
----
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12. Plaintiffs allege and aver that they are entitled
to the remedy of recision as to the grantor, LAND
INVESTMENT CORPORATION, which is a company
related to the parent company, HOUSTON EZELL
CORPORATION.
----
14. Plaintiffs allege and aver that, due to the
statutory obligation of the CITY OF BRENTWOOD,
TENNESSEE to properly review, inspect, and approve land
proposed for subdivision development, the CITY OF
BRENTWOOD, TENNESSEE is legally responsible, both
upon legal theories of permanent nuisance and tort, due to the
improper supervision of the development of Lot 156.
----
BASED UPON THE FOREGOING ALLEGATIONS,
PLAINTIFFS SEEK THE FOLLOWING RELIEF:
A. A finding by the Court that the above
described condition constitutes a permanent nuisance, which
cannot be abated or minimized by expenditures of additional
sums or additional corrective work.
B. That, in the alternative, a mutual mistake of
fact or negligent misrepresentation existed at the time of the
sale of the property to the Plaintiffs and that, accordingly,
Plaintiffs should be granted recision of the transaction,
together with incidental and consequential damages
appropriately shown.
C. A finding that the CITY OF BRENTWOOD,
TENNESSEE is jointly and severally liable due to its failure
to follow the requirements which the CITY itself promulgated
for proper review of potential drainage problems in proposed
subdivision development.
D. The joint and several liability for the damages
shown by the Plaintiffs against the Defendant HOUSTON
EZELL CORPORATION, developer of Brentmeade Estates
Subdivision.
E. For such further and general relief to which
Plaintiffs may be entitled, including all incidental and
consequential damages, attorney’s fees, and court costs.
F. A finding that the conduct of the developer
constitutes a violation of the Tennessee Consumer Protection
Statute, specifically Tennessee Code Annotated, § 47-18-101
et seq, entitling the Plaintiffs to an assessment of attorney’s
fees and, if intentional misconduct is shown, an award of
treble damages against the developer and grantor.
The City moved to dismiss for failure to state a claim for which relief can be granted and
subsequently moved for summary judgment.
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The Trial Judge overruled the motion of the City to dismiss and sustained the motion of
the City for summary judgment.
The defendant-developer filed an answer including the following:
7. The Defendant admits that Land Investment and
Development Corporation, the predecessor of Houston Ezell
Corporation, transferred and conveyed the property described
in paragraph 1 of the Complaint to T. J. Neumann and
Associates, Inc. constructed a residence on the property; and
that T. J. Neumann and Associates, Inc. transferred and
conveyed the property to the Plaintiffs.
----
1. The Complaint fails to state a claim against the
Defendant upon which relief can be granted.
2. The causes of action alleged in the Complaint are
barred by the applicable statute of limitations.
3. Neither the Defendant or Land Investment and
Development Corporation, its predecessor, was guilty of any
negligence which proximately caused or contributed to the
Plaintiffs’ water problem or any damages, losses or expenses
incurred by the Plaintiffs.
Plaintiffs moved for partial summary judgment against the seller, which motion was
overruled.
The Trial Court entered the following Order:
Upon consideration of the entire record herein, the
court concludes that defendant Houston Ezell Corporation’s
Motion for Summary Judgment is not well taken and the same
is hereby overruled. Plaintiff is hereby awarded summary
judgment on the issue of defendant/developer’s liability
provided said defendant fails to sustain the affirmative
defense of bar of the statute of limitations.
ALL SO ORDERED this 14th day of December 1995.
The developer moved for an order bifurcating the remaining issue of statute of limitations
from the issue of damages, and for hearing on the issue. The motion was sustained.
-5-
All pleadings and orders to this point were under captions containing the names of all
three captioned defendants.
The captions of the succeeding memorandum and final order of the Trial Judge contain
only the name of the defendant-developer, omitting the other two defendants.
The Memorandum reads as follows:
This bifurcated case was heard on August 16, 1996, on
the affirmative defense of statute of limitations and/or statute
of repose. By order entered December 14, 1995, Judge Henry
D. Bell granted summary judgment as to liability, except for
defendant’s right to assert the statute of limitations defense.
By order entered April 23, 1996, the court bifurcated the
remaining issue of damages and set a hearing on the statute of
limitations issue.
On August 16, the court heard the testimony of the
parties and received additional evidence on the sole issue
before it. After due consideration, the court finds that the
statute of limitations/statute of repose defense has been
sustained and the case must be dismissed.
The gravamen of this complaint is that both a surface
water and subsurface water problem exist on the lot and under
the house where plaintiffs’ residence is located. Their
homebuilder, T. J. Neumann & Associates, Inc. (“Neumann
(sic)), who sold them their lot, has taken bankruptcy and is no
longer available for suit. They have sued the original
developer of the property under theories of negligence,
permanent nuisance, and violation of the Consumer
Protection Act.
The parties do not dispute that defendant sold this
property to the builder on March 31, 1986. The builder then
constructed a home on the lot. The home was substantially
completed and the plaintiffs received their deed on March 27,
1987. This lawsuit was not filed until December 14, 1993,
six and one-half years later.
At issue in the court’s determination are the three-year
statute of limitations for damage to real property (T.C.A. §
28-3-105); the four-year statute of repose related to real
property construction (T.C.A. § 28-3-202); and the one-year
statute of limitations (with a four-year statute of repose) for
violations of the Tennessee Consumer Protection Act (T.C.A.
§ 47-18-110). Plaintiffs’ suit was not brought timely unless
they can show that the applicable statute(s) was/were tolled
for some period of time by the actions of defendant that were
fraudulent or intended to conceal the real cause of action.
-6-
The pertinent facts are as follows. Defendant Houston
Ezell Corporation (formerly known as Land Investment
Corporation) purchased a large acreage in Williamson County
for the purpose of subdividing the land into one-acre tracts on
which single family residences could be constructed.
Defendant developed the land in compliance with all
applicable governmental rules and regulations. At no time
during the development process did any employee, agent, or
other representative of defendant see or hear about any
unusual flow or accumulation of water on the acreage which
eventually comprised the subdivision known as Brentmeade
Estates. Defendant ultimately sold Lot 156, the lot in
question of this lawsuit, to Neumann in March 1986.
Neumann then began construction of a home on this lot.
During construction of the home, a Neumann
employee of the builder observed water seeping from a rock
on the property. Neumann’s foreman called defendant for
advice because the builder was new to Tennessee and was
inexperienced in dealing with subsurface water issues. Ted
Sanders, an officer of defendant, went to the lot but did not
observe any flow or accumulation of water from or around the
rock at that time. Mr. Sanders made suggestions to the
foreman that an underground drainage pipe be installed to the
edge of the property line. Neumann completed this
installation. Defendant then agreed to install a pipe from the
property line under the street to connect to a storm drain on
the opposite side of the street. The City of Brentwood
inspector approved the installation of the pipe under the road.
Defendant was not directly involved in the installation of the
pipe on the property.
Plaintiffs purchased the lot and moved into the
residence in March 1987. Several months after they took
possession, plaintiffs noticed water standing in their back yard
after a heavy rain. They had never experienced this problem
before, but it did not cause them great concern at the time.
Within a month or two after that, a neighbor called and
pointed out water flowing on their property between the two
houses from an area in the back of their property. Water was
not only standing but flowing.
About six months later, in early 1988, plaintiffs
observed that every time it rained water would start pooling
in the same back yard area. The accumulation became much
larger than before. Mr. Bernard pinpointed six areas flowing
from underground that contributed to the pooling. This did
create concern. Mr. Bernard then contacted defendant for the
first time. He also contacted his attorney, who came to the
site, personally observed the six flowing streams, and made
a video.
In response to that call Doug Sanders, an agent of
defendant and acquaintance of Mrs. Bernard, came
immediately to the property and viewed the six water sources.
Plaintiff requested help from defendant to resolve the
-7-
problem. A few weeks later, in about March 1988, an
electrician working under plaintiffs’ house advised them
about a “serious” standing water problem there. Mr. Bernard
then went under his home for the first time. He again called
defendant, reported the problem, and sought assistance.
Defendant representatives returned to the house, observed the
water and building debris left by Neumann after construction,
and took action to pump the water and remove the debris from
underneath the house. The positive drain also was cleaned.
In the fall of 1988, Mr. Bernard again reported an
accumulation of water under his house. Defendant again
responded and pumped out the water. At that time Ted
Sanders also employed Barge Waggoner Sumner & Cannon
to investigate. Dan Barge, III proposed the installation of a
French drain to intercept the water coming from the back of
the lot and divert it around the house. This drain was
installed at no cost to plaintiff in early 1989. The defendant
also employed a subcontractor to rework the earthen drainage
ditch at the rear of the property. Immediately upon
completion of these actions, all parties hoped that they had
corrected the problem.
However, within six to eight months after this work
was done by defendant, Mr. Bernard testified that it was
“quite evident” that the problems had not been cured. At that
time he contacted an attorney to give him advice about what
his rights were. However, he did not contact defendant again
until early 1993.
In 1993 plaintiffs noticed a musty odor under their
house, and identified water accumulating there again. They
again contacted defendant, who employed a hydrologist to
prepare a report. As a result of the report made by Ogden
Environmental and Energy Services (“Ogden”), plaintiffs
have now been given a specific opinion about the cause of the
water problem, and a specific recommendation about what
needs to be done to correct it. Plaintiffs claim that the receipt
of this report constitutes the creation of their cause of action
and starts the running of the statute of limitations. They filed
this suit on December 14, 1993.
Plaintiffs asserted at trial that the construction of the
pipe across their property (not done by defendant), and the
failure to advise of that construction, constitutes one part of
their claim. They do not assert that plaintiffs created the
underground springs. They do contend that defendant’s
superior knowledge about the flowing water in 1986 gave rise
to a duty further to investigate it, and the failure to take that
step gives rise to a cause of action. They apparently did not
allege that any remedial work done in 1988 or 1989 gives rise
to a cause of action, but only that that work helped conceal
the extent of the problem. Plaintiffs rely heavily on
statements made in Prescott v. Adams, 627 S.W.2d 134
(Tenn. App. 1981). However, that case is distinguishable
because it arose out of a court’s grant of summary judgment.
-8-
In that case the trial court found that there were issues of fact
concerning the allegations of fraud and concealment, and that
summary judgment was not appropriate. In the instant case
defendant also did not prevail on its earlier motion for
summary judgment. The matter is before the court now,
however, after trial on the merits. This court has heard more
proof than was presented during the motion for summary
judgment, and is in a position to evaluate and weigh the proof
presented.
This court is convinced that the cause of action for
damages arose, if at all, many years before this lawsuit was
filed. If there is a permanent nuisance, it has existed since
before plaintiffs purchased their property, and has manifested
itself in several ways. If there is a violation of the Consumer
Protection Act, it must be based on some action or omission
taken not later than early 1989. The fact that plaintiffs did not
discover a fraud does not itself toll the statute of limitations.
There must be continued affirmative, fraudulent concealment
of the cause of action by defendant. In addition, the defendant
must know that the plaintiff has a cause of action and must
conceal it in such a fashion that, even if plaintiff were
diligent, he would not be able to discover it. Phillips v.
Phillips, 526 S.W.2d 439 (Tenn. 1975). It is not the fraud, but
its concealment by the party perpetrating it, unmixed with
fault or negligence on the part of him who complains, which
works this result. Id. At 440.
In this case the court is convinced that defendant never
affirmatively committed fraud or concealed a cause of action.
Each time plaintiffs called a representative of defendant
responded. Both parties had the same amount of information
concerning the problems as they developed. From 1988
forward, Mr. Bernard was fully aware that there were at least
six springs causing subsurface water flow in his back yard.
He was aware that water stood under the house after each
rain. Plaintiffs contend that they did not know they had a
cause of action until the Ogden report was made in 1993.
However, they have presented no proof to suggest why they
could not have hired a hydrologist earlier.
Ultimately it is not necessary for the court to analyze
each potential accrual date discussed by the parties in this
lawsuit. It is sufficient to find that the last work performed by
defendant on this property and the last statements made by
defendant, occurred in early 1989. Within six or eight months
after that time, plaintiff Charles W. Bernard was aware that
that work had not successfully contained the problem and that
the problem continued to exist. This concerned him enough
to cause him to call his attorney and to seek advice about his
rights in the situation. At this point, if not before, plaintiffs
clearly had a cause of action, and knew they had a cause of
action. Harvey v. Knox County, 1988 Tenn. App. Lexis 487
(Tenn. App. M.S., August 3, 1988). It was not necessary that
they know all the reasons for the problem or the extent of the
problems. They knew the problem was worse after a heavy
-9-
rain fall, but testified that it did not rain much between 1989
and 1993. Plaintiffs did not made any further contact with
defendant until early 1993, and did not file this lawsuit until
December 14, 1993. Their lawsuit is barred by all applicable
statutes of limitation and/or repose.
This Memorandum shall be placed of record, but need
not be spread upon the minutes of the court. An order of
dismissal is being entered contemporaneously.
The Order reads as follows:
In accordance with the Memorandum being entered
contemporaneously, IT IS HEREBY ORDERED,
ADJUDGED AND DECREED that plaintiffs’ case against
defendant Houston Ezell Corporation shall be, and is hereby,
dismissed. Costs are taxed to plaintiffs, for which execution
may issue if necessary.
The caption of the Notice of Appeal contains the names of all three defendants, but the
appeal bond is made only to the developer.
THE PARTIES AND ISSUES ON APPEAL
The cover, certificate of the Trial Clerk and brief of appellant list the names of all three
defendants. A brief has been filed in this Court on behalf of the developer, and a separate brief
has been filed on behalf of the City. No brief has been filed on behalf of Land Investment
Corporation.
Plaintiffs state the issues on appeal as follows:
1. Within the meaning of Rules 13d and 36 of the
Tennessee Rules of Appellate Procedure, does the
preponderance of the evidence support the trial court’s ruling
that no conduct was committed by the Defendant which
violated a duty to disclose, within the meaning of the T.C.A.
§ 28-3-205, tolling the statute of limitations?
2. Did the Defendant’s conduct in performing the
corrective work, while not disclosing a full history of the
problem, effect an estoppel of the statute of limitations
defense?
-10-
3. Was the trial court correct in its determination
that the CITY OF BRENTWOOD is immune from claims
arising from the CITY’S failure to conduct any final
inspection of the BERNARD residence and thereafter
permitting its sale and occupancy, after failing an earlier
inspection?
The developer states the issues on appeal as follows:
A. Did Chancellor (sic) Cornelia A. Clark err,
after hearing all the proof, by determining that the statute of
limitations barred the Plaintiffs’ alleged cause of action
against the Defendants?
B. Did Chancellor Henry Denmark Bell err by
granting the Plaintiffs’ Motion for Partial Summary
Judgment and denying the Defendant’s Motion for Summary
Judgment?
The City states the issue on appeal as follows:
I. Whether the trial court was in error in
granting summary judgement (sic) in favor of the City of
Brentwood pursuant to the Tennessee Government Tort
Liability Act, on the basis of immunity to the plaintiffs’
theories of negligent inspection, issuance or failure to issue
a building permit and nuisance.
FIRST AND SECOND ISSUES
Liability of Developer
T.C.A. § 28-3-202 reads as follows:
Limitation of actions. - All actions to recover damages for
any deficiency in the design, planning, supervision,
observation of construction, or construction of an
improvement to real property, for injury to property, real or
personal, arising out of any such deficiency, or for injury to
the person or for wrongful death arising out of any such
deficiency, shall be brought against any person performing or
furnishing the design, planning, supervision, observation of
construction, construction of, or land surveying in connection
with, such an improvement within four (4) years after
substantial completion of such an improvement. [Acts 1965,
ch. 353, § 1; 1980 (Adj. S.), ch. 811, § 1; T.C.A., § 28-314.]
As found by the Trial Judge, the basic problem was excessive water on the lot, particularly
under the house, which plaintiffs reported to the developer “early in 1988" (before March). This suit
-11-
was initiated on December 14, 1993, more than four years later, at which time, any action against
the developer for negligence in the planning of the construction was barred. Plaintiffs insist that the
developer was guilty of fraudulent concealment which tolled the statute of limitations and/or
estopped the defense of statute of limitations. A careful examination of appellant’s brief and the
record fails to disclose any citation to the record or evidence indicating any concealment or failure
to disclose by the developer subsequent to the occasion in “early in 1988" when plaintiffs’ disclosed
their knowledge of the defects by complaining of them to the developer. No such subsequent
negligent or fraudulent concealment is cited in plaintiffs’ brief or found in the record.
Nevertheless, plaintiffs insist that the developer committed actionable subsequent
concealment when, in their efforts to satisfy plaintiffs’ complaints, they agreed to and did install an
8" drainage pipe partly on plaintiffs’ property and partly upon the public right of way. Plaintiffs’
brief contains citations of numerous authorities which are applicable to particular circumstances, but
the brief contains no citation of evidence of facts in the present case which would establish
wrongdoing by either defendant at any time within the period of limitation prior to the filing of this
suit.
Plaintiffs assert:
The defendants’ conduct in performing corrective
work while not disclosing a full history of the problem
effected an estoppel of the statute of limitation problem.
This Court does not understand the general rule to be that any effort by a wrongdoer to
remedy the effect of the wrongdoing would effectively bar the defense of the statute of limitations.
In Jackson v. Kemp, 211 Tenn. 438, 365 S.W.2d 437 (1963), the Supreme Court said:
A statute of limitation may be waived by express
contract or by necessary implications or its benefits may be
lost by conduct invoking the established principles of estoppel
in pais. (Emphasis supplied)
No evidence is cited or found to show that either or both of the defendants represented,
promised or contracted to remedy all of the subject defects in exchange for plaintiffs’ delay in
-12-
bringing suit, or that plaintiffs did allow the statute to expire in reliance upon such representation,
promise or contract. Sharks v. Metropolitan Government of Nashville and Davidson County, Tenn.
App. 1989 states:
Where by promises and appearances one party is
induced to believe that the other party is going to pay or
otherwise satisfy the claim of the first party, and in reliance
on that representation the first party delays filing suit, the
party making the representation may be estopped to raise the
statute of limitations as a defense. (Emphasis supplied)
In short, plaintiffs have not provided this Court with an evidentiary basis upon which this
Court might apply the authorities cited.
THIRD ISSUE
Immunity of the City
T.C.A. § 29-20-205 provides in pertinent part as follows:
Removal of immunity for injury caused by
negligent act or omission of employees - Exceptions. -
Immunity 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:
----
(2) Arises out of false imprisonment pursuant to
a mittimus from a court, false arrest, malicious prosecution,
intentional trespass, abuse of process, libel, slander, deceit,
interference with contract rights, infliction of mental
anguish, invasion of right of privacy, or civil rights;
(3) Arises out of 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 authorization;
(4) Arises out of a failure to make an inspection,
or by reason of making an inadequate or negligent inspection
of any property.
Plaintiffs’ suit against the City is clearly based upon alleged acts or omissions of its agents
making an inadequate or negligent inspection of property, and/or issuance of a permit, license,
certificate, approval or authorization. It is true that plaintiffs argue that defendants created a
-13-
nuisance, but no evidence is cited or found that the efforts of the defendants, or either of them to
remedy the effects of the defects created a nuisance.
Accordingly, this Court concurs in the finding of the Trial Court that the City of Brentwood
and its employees are statutorily immune to the rights of action asserted by plaintiffs.
The disposition of this appeal is contrary to the desire of this Court to reach a fair result.
However, circumstances over which this Court has no control require the disposition.
Governmental immunity from suit has its roots in the common law; and, under our Constitution the
power of limiting that immunity is reserved to the Legislature. In its wisdom, the Legislature has
seen fit to preserve that immunity in respect to the actions and inaction of the City in the present
case.
Statutes of limitation are likewise the exclusive province of the Legislature, and exceptions
to legislation may not be granted by the courts. Apparent exceptions are not true exceptions but
recognition of special facts which produce a different right of action to which a different limitation
applies.
Finally, plaintiffs’ failure to timely ascertain their rights and timely pursue their remedies
has its part in their failure to obtain relief.
-14-
The judgment of the Trial Court is affirmed. Costs of this appeal are taxed against the
plaintiffs and their surety. The cause is remanded to the Trial Court for further necessary
proceedings.
AFFIRMED AND REMANDED
___________________________________
HENRY F. TODD
PRESIDING JUDGE, MIDDLE SECTION
CONCURS:
_________________________________
BEN H. CANTRELL, JUDGE
_________________________________
WILLIAM B. CAIN, SPECIAL JUDGE
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