### IN THE COURT OF APP EALS OF TENNESS EE AT NAS HVILLE O ct obe r 11, 200 5 S es sio n
THAD GUE RRA, ET AL 

### . v. STA TE OF TEN NES SEE
Appeal f romthe Claim s Com m ission for the State of Tennessee, Davidson Cou nty No. 20201057 Stephani e Re ever s, Com m ission er

No. M2004- 02559-COA-R 3-CV - F iled Dece m ber 6, 2005

The issue pre s en t ed in t his appea l is whether the home owner s’ suit ag ainst the State of Te nn e sse e wa s ti me ly

fi le d. Th e ho me ow ne rs fi led a c omp la int

wi th the Te nn e sse e Cla ims Com mis sio n a g a ins t th e Sta te of Te nn e sse e fo r the a lle g e d un c on sti tut ion a l takin g of the ir pr op e rt y i n co n n ec t i o n wi t h t h e S t at e’ s i s s u an ce o f ap er m i tt o t h e h o m eo wn er s t o i n s t al l a s u b s u rf ac e s ew age disposal sy stem. The Cl aims Commi ssion ruled in fa vor of the State, f inding a mong othe r thing s that the homeowne rs’ c laim was time barr ed. The applicable statute of limitations allows a landowner one y ear within which to commence an ac tion for the taking of land afte r the landowner rea liz es or rea sonably

should realize that his or her property has sustained a n injury

that is pe rmane nt in nature. The homeow ners contend t hat t hey did not rea liz e that they had suffere d perma nent injury until the State eliminated the possibilitythat the injury to their prope rt y co u l d b e re solved. We aff irm the jud g me nt of the Cla ims Com mis sio n up on ou r fi nd ing that th e ho me ow ne rs sh ou ld h a ve re a so na bly
re a lize d that the inj ury to the ir pr op e rt y wa s pe rm a ne nt ov e r on e y e ar prior to the tim e the y fi le d th e ir claim.

Te nn. R . A pp. P . 3 App e al a s o f Rig ht ; J udgm e nt of t he Cl aim s C om m iss ion Affir m e d; Cause Rem anded

S HAR ON G. LEE , J ., delivere d the opinion of t he court, in which H ER SCH EL P. F RAN KS , P.J ., and D. Michae l Swiney , J ., joined.
TimothyW. Burrow , Nashville, Tenne ssee, f or the Appe llants, Thad and Da rlene Guer

ra. Paul G. Summers, Attorney Ge n er al and Reporter; Michae l E. Moore, Solicitor Gene ral; and Kimberly J . Dea n, Deputy

Attorney Gene ral, Na s hville, Tennesse e, for the Appellee , State of Tenne ssee.
OP IN ION

Tad a nd Dar lene Gue rra

purcha sed l ot number 20 in the S cenic Ridge Subdivis ion in W ilson County , Tenne ssee in Nove mber of 1997. Prior to the ir purcha se of the lot, the State of Tenne ssee’ s Depa rt ment of Environment a nd Conservation (“ TDEC”) ha d approve d the subdivision plat as-2-

possessing suitable soil for the installation of a subsurfac e sewa g e disposal sy stem (“SSDS”), such sy stem being nece ssitated by the fa ct that the prope rty is without acce ss to a city sewe r sy stem.

On Marc h 11,1998, the Guer ras a pplied for a

permit to construct a n SSDS on their lot. Prior to approva l of an a

pplication for a n SSDS , state re g ulations require that an employ ee of TDEC evaluate the lot upon which the sy stem is to be ins talled t o ensure that there have be en no chang es in the lot since the plat was signe d and that the lot is still suitable for the construction of the SSDS contemplated. T his evaluation entails revie w of the soil map and othe r pertinent data with re g ard to the pr op e rt y

in q ue sti on a s w e ll a s a n on -s ite ins pe c tio n. Th e n, takin g a ll o f this inf orma tio n in to
acc ount, the TDEC employ ee desig ns an SSDS for the lot, and issues a permit listing the size of the S S D S t a n k ; t h e l e n g t h , w i d th a n d d e p t h o f d i s p o s a l f i e l d l i n e s ; a n d o t h e r

r e l e v a n ti n f

o r m a t i o n

. In this case, the Guer

ras’ lot wa s evaluated by a TDEC e mploy ee, A llen Schwendimann, who the rea fter issued a permit for the construction of a conventional SSDS for the thr ee- bedroom house the Guer ras intended to build. The permit specifie d various conditions with respe ct to how the SSDS was to be ins ta lle d a ndwh e re it w a s to be loc a te d o n th e lot

. After obtaining the permit from TDE C, the Guerr as bega n construction of the ir house and the SSDS, wit h such construc tion being ove rsee n by Mr. Guer

ra. On October 21, 1998, afte r completion of construction, TDEC conducte d an ins pection of the property and determined t hat final approva l of the SSDS shoul d be denie d upon g rounds that spac e had n o t b een r eser ved for a du pli c a te SSD S. Spa c e fo r a du pli c a te sy ste m is ne c e ssi ta te d by the fa c t that, ov e r tim e , a septic sy stem is likelyto fail, and the r eser vation of an additional are a with suitable soil ensure s that there will be a ready location for the i nstallation of a substitut e sy stem. I n this case, Mr. Schw endimann had allotted a total of

8000 square fee t of suitable soil as sufficie nt space for both the initial SSDS and a duplicate sy stem. The permit issued to construct the SSDS also included spec ific limitations as to the distance that was to be ma intained betwe en the Gue rra s’ house a nd the spac e set a side for the duplicate sy stem and as to the allowed width of t he Gue rra s’ drivew ay . TDEC contends that the 8000 square fee t allowed under the permit would have bee n sufficie n t t o ac commodate both the installed sy stem and a duplicate sy stem had the Guer ras observe d the spec ified limitations when they constructe d t h ei r house and driveway . TDEC maintains that the Guer ras a re to blame for the f

act that their sy stem was denie d approva l because they failed to c omply

with these lim i t at i o n s wi th a
re su lti ng e nc ro a c hme nt o n, a ndlos s o f, the are a that ha d be e n de sig nate d a s su ita ble fo r the du pli c a te SSDS

. On J anuary 20, 1999, TDEC mailed M r. Guerra a letter advising him that final approva l of the S SDS had been denied for lack of a duplicate a

rea . A subsequent r equest for varia nce f

iled by the Guer ras wa s denied in F ebrua ry of 1999, and the Gu er ra s fi l ed a pro s e appea l with the Administrative Procedur es Division. The appe al was assig ned to an administrative law judg e who hear d the ca se on J uly 28, 2000. By order of Aug ust 1, 2000, inter alia t h e a d m i n i s tra t i v e l aw j u d ge fo un d a s f oll ow s: The pe titioners’ SSDS o n L o t #20 should not be approved. T he sy stem was constru ct ed i n violation of the conditions of the issued permit bec ause it lac ked a duplicate area for t he disposal field of the SSDS . The Administrative Judge f inds that the site is unsuit able f or-3- a variance from the rules and reg ulations a nd that the Petitioners have not met the burden of

proof to show otherwise. The Administrative J udg e also finds that the Depa rtment has shown by

a pre pondera nce of the e vidence that the property cannot be approve d due to the lack of duplicate are a.
Th e or de r d e nie d the Gu e rr a s’ re qu e st fo r ap pr ov a l of the c on str

uc tio n o f the SSD S a ndthe ir reque st for a va

rianc e. The order

was not appe aled a nd became final on Aug ust 16, 2000.

On J anuary 10, 2002, the Guer ras filed a pro s e claim ag ainst the State of Te nnessee with the Division of Claims Admi nistration. On April 8, 2002, their cla im was transfe rre d to the Tenne ssee Claims C ommi s sion and subsequently was a mended by

the filing of an a mended c omplaint. The Guer ras’ complaint alleg es that Mr. Gue rra applied for

a permit to construct a s ew ag e disposal sy stem and stated in the a

pplication that he planne d to construct a thr ee- bedroom house and that the State issued a permit on that basis and require d installation of a conve ntional SS DS. The complaint
a sse rt s th a t, u nb e kn ow ns t to Mr . G ue rr a wh e n h e c on str

uc te d th e ho us e a nd the c on ve nti on a l SSD S, the Guer ras’ lot did not have sufficie nt suitable soil for the construction of a conventional SSDS and, there fore , it wa s not possible to construc t a conve ntional SS DS on the lot that would be approve d by the State. The complaint rec ites that the SSDS constructed by Mr. Guer ra w as not approve d and
as a conseque nce the Guer ras could neither use nor sell the house, wer e unable to pay the mortg ag e, and had to f

ile for ba nkruptcy

. Inter alia, the complaint cha rg es t h at “[ t ] h e State committed an unconstitutional taking of the Guer ras’ property

(cons isting of the lot and the home that was constructe d upon the lot) by issuing a pe rmit for a SSDS that resulted in Guer ras’ loss of use and
e njo y me nt o f the ir

ho me .” I n c on se qu e nc e of the se a ndoth e r a lle g a tio ns , th e com pl aint re qu e sts compensatory

and conse quential damag es under Tenn. Code Ann. §9- 8-307(d)

. On May 24, 2002, the State filed a motion for summary judgme nt in part upon g rounds that “any claim for the unconstitutional taking of private prope rty is barre d by

the statute of limitations.” The State’s motion for summary judgme nt initi ally

was de nied by

order of the Claims Commi ssion filed Mar ch 27, 2003. Howe ver, the State continued to a ssert that the Guer ras c laim was time barr ed
a t th e tr ia l of

the c a se on Ma

rc h 3 0- 31 , 2 00 4. On Se pte mbe r 2 2, 20 04 , th e Com mis sio n e nte re d it s judgme nt dismi ssing the Guer ras’ claim and ruling in favor of the State on eve ry

issue of law a nd fac t, including the issue of whether the Guer ras’ claim was ba

rre d by the statu t e of limitation. Th e re a ft e r, the Gu e rr a s f

ile d th e pr e se nt a

pp e a l.
Although se vera l issues ha ve been raised in this case , the sole issue we addre ss is whether the Guer ras’ claim filed with the Claims Commi ssion on J an u ar y 1 0 , 2 002, was ba rre d under the applicable statute of limitation. All ot her issues pr esente d fo r o u r re v iew ar e pre termitted by our decision as to this issue.
Tenn. Code Ann. § 9- 8-403(a )(1) provides that a direct appe al from the Claims Commiss ion is gove rned by

the Tenne ssee Rules of A ppellate Proc ed u re

. Ac co rding ly , finding s of fa ct by the Commi ssion are r eviewe d de novo upon the re cord w ith a presumpti o n of cor rec tness, and such f i n d i n g s m u s tb e a f

f i r m e d ab s e n ta

p r e p o n d e r a n c e o f

e v i d e n c e t o t h e c o n tr ar y. Te nn . R. Ap p. P. 13 (d ); Le ar ue by Le ar ue v . S tat e , 757 S.W .2d 3, 6 (Tenn. C t

. Ap p

. 1 9 87). F actua l findings that-4-

hin g e up on a

wi tne ss’ s c re dib ili ty

wi ll not be re ve rs e d u nle ss the wi tne ss’ s c re dib ili ty is n e c e ssa

ri ly neg ated by clea

r, conc rete and convinc ing e vidence

. Po ol v . S tat e , 9 87 S.W. 2d56 6, 56 9 ( Te nn . Ct

. App. 1998). The Commi ssion’s conclusions of law a re r eviewe d de novo without a presumption of
corr ectne ss. Union Carbide Corp. v. Huddleston , 854 S.W .2d 87, 91 (Tenn. 1993)

. Pursuant to Tenn. Code Ann. §12- 1-206 and §29- 16-124, an ow ner of private pr operty

has
on e y ea r t o commence a proc eeding that claims that a g overnme ntal action constitutes an unconstitutional taking. In Knox County v. Monc ier , 455 S.W .2d 153,156 (Te n n

. 1970), our Sup re me Cou rt

state d a s f

oll ow s r e g ard ing wh e n th is o ne y e ar p e ri odbe g ins :
The statute of limi tations should be applied in such a ma nner that the la nd ow ne r wi ll ha ve the on e y e ar pe ri od wi thi n wh ic h to bring his su it “af ter injury or af ter re asonable notice or knowledg e of suc h injury and dama g e.” We would a dd to this t hat the landowner should have one y ear to commence his action after a n injury to his property

which
rea sonably

appea rs t o him to be a permanent injury rathe r than a temporary

one. Only when the injury is permane nt in nature c an ther e be a “ taking ” within the contemplation of the statute; and until there is a “taking ” the statute of limit ations does not beg in to run.

. . . We d o n ot hol d th at a

pr op e rt y ow ne r c a n s it i dly

by a ndwa it t o commence his suit at any

time which is convenie nt with him, thereby circ umventing the purpose of the statute of limitations. What we do ho ld i s th a t th e on us is o n th e pr op e rty ow ne r t o in sti tut e his su it wi thi n o ne y e ar a ft e r he re a lize s o r s ho uldre a so na bly re a lize that hi s property has sus tained an injury which is perma nent in nature . At that time the ‘taking ’ occ urs and the statute of limitations begins to run. (citations omitted)

I n it s ju dg me nt o f S e pte mbe r 2 2, 20 04 , th e Com mis sio n c on c lud e d a s f oll ow s:
[T] he Administrative L aw J udg e’s Final Orde r [entered Augu s t 1, 2000,] reasonably

s h o u l d have put the G uerr as on notice that any taking of their pr operty

by rea son of the denial of the ir permit was perma nent. The G uerr as we re the ref ore r equire d to exercise due dil ig e nc e to a sc e rt a in the pe rt ine nt f a c ts w ith in o ne y e ar of

thi s oc c ur re nc e a ndto ini tiate su it. Th e pr oo f de mon str a te s tha t th e y did
no t do so and ther e fo re the Com mis sio n c on c lud e s th a t th e c la im should be dismissed as time barre d.

The Gue rra s contend that the Commission’s conclusion that t h ei r claim is barr ed by the statute of limit ation is e rrone ous. The Guer ras assert that a fter Mr . Guer ra r ece ived the above noted order of the a dminist rative la w judge , he eng ag ed in c onversation with L arry Matthews, an e mploy ee-5-

of TDEC, who told him “that they neede d to look into the pos sibili ties of an ex perimenta l sy stem.” The Gue rra s state that Mr. Gue rra “told M r. Matthews that it would be ea sier to locate the [field] lines the fo l l o wi n g summer (of 2001) and Mr. Matthews then said that it would be better to have Tom Pettycome out to the prope rty then to determine how much suitable soil was a vailable.”

The Gue rra s and TDEC met on the pr oper t y o n Au g ust 31, 2001. A field ac tivityreport pr e pa re d b y TD EC o n th a t date de sc ri be s th e me e tin g , note s tha t the SSD S pe rm it w a s p re vio us ly d en i ed b ec au s e t h er e w as n o p ro v i s i o n fo r ad u p l i ca t e a re a a n d i n cl u d es t h e f o l l o wi n g: Appar ently , ease ments are not options on any adjoining lots. Ther e is definitely

not enoug h suitable soil f or the construc tion of a sec ond conventional SSD sy stem. Whether there is e noug h suitable soil for an experimental or advanc ed treatment sy stem cannot be determined at th is ti me

. T h e tw o o p ti o n s th a t c a me to mi n d w e r e th e Pu r a flow peat biofi lters made by Bor d Na Mona

(obser ved in southern Al aba ma ) andthe Ae ro Di ff us e r s y ste m ma de by

Z abe l.

The re port furthe r notes that Mr. Guer ra was instructed by

TDEC to have a

survey map made of the property to de termine the location and suitabilit y of all soils and that Mr. Guer ra w as informe d of the ne c e ssi ty

of a re stric tiv e c ov e na nt w ith re sp e c t to bo th s y ste ms.
There afte r, Mr. Gue rra

had a sur vey

map made of

the prope rty , and this map was pr esente d to TDEC. On Octobe r 2 5, 2001, TDEC issued an a dditional field activity report. The re port
a c kn ow le dg e s th a t Mr . G ue rr a wa s a dv ise d to ha ve the su rv e y pe rf orme d “ in h op e s th a t so me so il might be f

ound to acc ommodate an e x perimenta l SS D sy stem.” Howe ver, the report states that the survey “map indicates that there are no signific ant are as for any experimental sy stems on lot #20”
a n d th a t “ [b ]e c a u s e th e r e ar e n o o p ti o n s f o r e ith e r e xp e r im e n ta l o r

A T S s y s te ms , th e T D E C- G WP centr al offic e staff

has re moved itself from this proce ss.”

Ba sed upon these f

ac t s , t h e Guerra s prese nt the following arg uments that their claim of J anuary 10, 2002, was filed w ithin the one y ear statute of limitation:
First, the injury

was not permanent until T DEC decide d it was so on October 25, 2001. As shown above , TDEC stated itself that “w hether there is e noug h suitable soil for an experimental o r a d v an ced treatment sy stem cannot be determined at this t i me.” To c onclude that the Guer

ras should have kno wn t hat the prope rty damag e wa s perma nent bef

ore the n i s t o conclude that the Guer ras should have known m o r e th a n T D E C kn e w

. T D E C’ s r e p r e s e n tati v e s ar e the experts, n o t th e G u e rr a s

. A ls o , th e G u e rr a s h a d to f o ll o w T D EC’s instructions and conc lusions, not t he other way around.

Th e se c on d ar g ume nt in fa vo r of the Gu e rr a s’ po sit ion that it s c la im was filed w ithin the one y ear statute of l imitations is that the Guerr as could not h av e expedited TDEC’s discovery that the injury

was-6- perma nent. It is im portant to note that i t was TDE C that did not conclude that the injury

was p ermanent by

virtue of a dvising the Gu e rr a s th a t a n e xpe ri me nta l sy ste m is a po ssi bil ity

. Mo reov er, it was TDE C that determined on October 25, 2001 that the injury was perma nent, b y

concluding that there wer e no options for e ither experimental ATS sy stems. The C ommissi on’s conc luding that the Gu erra s d i d n o t ex er ci s e d u e d i l i gen ce i n d i s co v er y t h at t h e d am age wa s p e rm a ne nt i s to sa y

that th e Gu e rr a s sh ou ld h a ve do ne mo re t o expedite TDEC’s determination that the injury was pe rmane nt. The critica l fac t, however , in which the Commi ssion failed to mention and appar ently

failed to consider, is that the State instructed Mr. Gue rra to w a it u nti l su mme r t o meet at the s ite . T he n at th e me e tin g , it instructed Mr. Gue rra

to cause maps to be done. He did so and g ave it to the St ate be fore Octob er 2 5 , 2001, which is less than two months. Bef

ore r ece iving the instruc tions from the State, what was Mr. Gu er ra t o do, and how c ould he have expedited the State’s de cis io n th at w a s ma de on Oc tob e r 2 5, 20 01 ? Th e Gu e rr a ’s c la im
wa s f iled on J anuary

10 , 2 00 2. Th e re fo re , th e Gu e rr a s f ile d th e ir claim within a y ear

of the time they

should have discove red that the da ma g e wa s p e rm a ne nt.

Gi ve n th a t th e Com mis sio n didno t ta ke int o c on sid e ratio n th e se fa c ts and that it can only be conclude d that the Commiss ion’s decision wa s based on the only

fac t cited in support of its decision, which was that

“ no a c tio n a

pp e ars to h a ve be e n ta

ke n w ith re sp e c t to this po ssi bil ity [of an experimental SSDS ] unt il m o re than a y ear afte r the Administrative L aw Judge ’s orde r”, t h i s Court should reverse the ruling

. N o a c ti o n w a s ta k e n o n ly b e c a u s e th e St a te in s tr

u c te d M r. Gu e rr a to w a it.

The Gue rra s ref

ere nce the following trial testimony of Mr. Gue rra

in support of their above noted assertions reg ardin g t h e conversation that Mr. Guer ra ha d with L arry

Matthews af

ter Mr. Guer ra r ece ived the administrative law judge ’s orde r of Aug ust 1, 2000:

Q. Now, did y ou have a

conver sation with any

body with reg ard to the possibili ty of an experimental sy stem working on y our lot a fter y ou rec eived the O rder

from the a dminist rative j udg e denying y our reque st for a va

rianc e?

A. L arry Ma tth e ws

. Q. What did he tell y ou?

A. He told me t h at we ne eded to look into the possibilit ies of an
ex p er i m en t al s y s t em

. I

d i d n ’t ev en k n o w t h er e w as s u ch a t h i n g.-7- Q. Did he a ct as thoug h it wa s viable, just a cra p shoot, y ou know, I mean, what kind of impression did he g ive y ou?

A. Well, at the time w e wer e looking for any option possible, so we too k th is a s r e a lly

g oo d n e ws

. Q. W h at d i d h e say

as fa r the proc ess of g oing a

bout pursuing an e xpe ri me nta l sy ste m?
A. Well, in the varianc e hea rin g - - not so much in the va rianc e hearing, but I

believe he re Mr . Matthew testified he ne ver sa w the lin e s. He ha d me nti on e d to me that se e ing the lin e s w ou ld b e a wh ole lot e a sie r to de te rm ine ho w muc h s uit able so il w a s a va ila ble be c a us e appar ently

the experimental sy stem takes up less or more; I ’m not an
e xpe rt on tho se . H e sa y s th a t w ou ld h e lp d e te rm ine that.
Q. I s th is s uit able so il for an e xpe ri me nta l sy ste m a s o pp os e d to
su ita ble so il f or a c on ve nti on a l sy ste m?

A. Id o n ’ t k n o w i f t h e y ’ r e o n e i n t h e s a m e , b u t t h a t w a s my u n d er s t an d i n g. Q. Go ahe ad and pr ocee d.

A. I told him t hat during the summer, during the dry months, that y ou could see our fi el d l i n e beca use the g rass wa s a lot g ree ner. It was like the dra wi n g. I

mean, y ou could see it. And he had mentioned that it would be better to ha ve Tom Petty come out and be able to see that when that wa s in that place, w hich was in the summer

. Q. Di d t h at h ap p en t h at fo l l o wi n g s p ri n g?
A. No, I don’t know why

. I d on’t know if it raine d more that y ear , but it never ha

ppened. O nce it didn’t happe n, we we nt ahea d and made the c all and said it’s not happe ning; we need to g et this done.
Q. Wha t ha

pp e ne d a ft e r that?

A. Then t h e p ro ce s s started a nd Cory Hodg e came out. He did the soil evaluation. I

met with Greg Upham who a ppare ntly had bee n c ha rg e d th a t.

I n further reg ard to Mr. Guer

ra’ s conver sation with Mr. M atthews, the Guerr as re fer ence Mr. Gu e rr a ’s a ff

ida vit wh e re in h e a tte sts in p e rt ine nt p art a s f oll ow s:-8- I did no t bel ie ve the re wa s a perma ne nt inj ury to the pr op e rt y un til it was de termined by the State on approximately October 25, 2001 that the re we re wa s n o a lte rn a te sy ste m th at c ou ld b e ins ta lle d. P rior to that time, I

alway s considere d the probl em t o be tempora ry . Very so on a ft e r the he ari ng on July 28 , 2 00 0, I

ha d a c on ve rs ati on wi th L arr y Matthews with the Division of Ground Water Protection of the [TDEC] . He sa id that th er e wer e new options for experimental
s y s te ms th a t r e q u ir e d le s s ar e a

. T h r o u g h h is d ir e c ti o n , I h ad the lot survey ed, a new soils map done, and other investig ations done on the lot so that the St ate c ould determine w hether or not an e x perimenta l sy stem could be installed
Upon ca ref ul review of the e vidence in this matter, we are compelled to the c onclusion that the the statut e of

lim itatio ns wa s n ot tol le d by a c tio n of the TD EC andthe re fo re the Gu e rr a s’ c la im of January

10, 2002 was not timely

filed.

Mr. Matthews attests in his own af fidavit filed on De cembe r 9, 2002, “I never informed Mr. Guer ra that an alternative sy stem was a via ble option ... I

mere ly t o l d M r. Guerra

that there wer e alternative subsurfac e sew ag e disposal sy stems he could exp l o re

. ” W e fi nd nothing in either Mr. Guer ra’ s ref ere nced trial testimonyor his affidavit which constitutes evidenc e that Mr. Matthews indicated to Mr. Guerra that the i njury to his property was not perma nent. Mr. Guerra testified that Mr. Matthews told him “that we n ee d ed to look into t he possibiliti es of a n experimental sy stem.” Howeve r, the Gue rra s had no rea son to be lieve that the injury to their property

was not permanent when the a dminist rative la w judg e issued the or der of Aug ust 1, 2000, or at an y t i m e thereaf ter. Whil e the Gu e rr a s ar g u e th a t th e y d idn o t kn o w th a t th e ir

in ju r y w a s p e r man e n t u n ti l O c to b e r 2 5, 2001, when it was de termined that a n alternative sy stem would not r esolve their problem, they do not present a n adequate explanation as to why this determination could not have been made be fore the expiration of the one y ear they wer e allotted for f iling their c laim. Accor ding to Mr. G uerr a’s testimony , th e o p ti mu m t im e f o r e xa mi n in g th e s y s te m w a s “ d u r in g th e s u mm e r , d u r in g th e d ry months.” Mr. Guerra is una ble to explain why

he did not have the matter re solved sooner tha n he did and mere ly

states “Onc e it didn’t happen, w e we nt ahea d and made the ca ll and sai d it’s not happening ; we nee d to g et t his done.” The evidenc e does not pre ponderate ag ainst the finding of the Com mis sio n th a t th a t th e Gu e rr a s d id n ot “ e xer c ise du e dil ig e nc e to a sc ert a in the pe rt ine nt f a c ts within one y ear ” of the Aug ust 1, 2000 order of the administrative law judg e.

F or the fo re g oin g re a so ns , w e a ff ir m th e jud g me nt of the Cla ims Com mis sio n a ndthi s c a us e is remande d to the Commi ssion for furthe r proc eeding s as ar e nec essary consistent with this opinion. The c osts on appeal a

re a ssessed ag ainst Thad and D arle ne Gue rra

.

_________________________________________ SHARON G. LEE, J UDGE