IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

July 18, 2012 Session

TIMOTHY KLEIN and ANGELA KLEIN v. HARDIN COUNTY,

TENNESSEE, ET AL.

Direct Appeal from the Circuit Court for Hardin County

No. 4229 Charles C. McGinley, Judge

No. W2011-01944-COA-R3-CV - Filed August 16, 2012

This is an appeal from the grant of summary judgment in favor of Appellee, a property

developer. The underlying case is for personal injuries sustained by Plaintiffs in a

motorcycle accident, which was allegedly caused by a pothole in the road. The question

presented for determination is, as between Appellee and Appellant Hardin County, who owns

the portion of the road where the accident occurred. After completing its development,

Appellee dedicated portions of the roadway to Hardin County for public use. However, in

cross-motions for summary judgment the Appellee and Appellant each claimed that the other

owned the disputed portion of the road where the accident occurred. Although the disputed

portion of the road was specifically excluded from the dedication, and Appellee maintained

the road, the trial court determined that Appellee had implicitly dedicated the disputed

portion to Appellant and granted summary judgment in favor of Appellee developer. Based

upon the evidence in record, we conclude that reasonable minds could reach different

conclusions concerning ownership of the road and accordingly, reverse the grant of summary

judgment.

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

Remanded

J. STEVEN STAFFORD,J., delivered the opinion of the Court, in which ALAN E. HIGHERS, P.J.,

W.S., and DAVID R. FARMER, J., joined.

James I. Pentecost and William B. Mauldin, Jackson, Tennessee, for the appellant, Hardin

County, Tennessee.

Timothy G. Wehner, Michelle Greenway Sellers, and A. Blake Neill, Jackson, Tennessee,

for the appellee, Montana Land Company, LLC.
OPINION

On August 18, 2008, Plaintiffs Timothy and Angela Klein were traveling east on

Northshore Drive in Hardin County, Tennessee when they were involved in an accident. The

Kleins were riding on a motorcycle, with Timothy Klein driving and Angela Klein seated

behind him. In their complaint, the Kleins allege that they encountered a truck traveling in

the opposite direction, and that there was a large pothole on their side of the road. According

to the complaint, the pothole measured “at least five feet in diameter with significant depth.”

The Kleins allege that they had to take evasive action in order to avoid the pothole and the

oncoming traffic and that, as a result of that evasive action, Mr. Klein lost control of the

motorcycle, resulting in a wreck and injuries to both of the Kleins.

The accident at issue occurred on Northshore Drive at or about 1/10th of a mile from

Highway 128. Northshore Drive was originally part of a development near Pickwick Lake

known as North Shore, which was built and owned by property developer, Appellee Montana

Land Company (“MLC”). The North Shore area is parallel to Tennessee State Highway 128.

The Tennessee Valley Authority (“TVA”) owns the property immediately adjacent to

Highway 128, thus separating the North Shore area from access to a public road. On July 8,

1998, the TVA granted an easement to MLC, which allowed MLC to place a road (i.e.,

Northshore Drive) across the TVA’s private property that abuts Highway 128 in order to

connect the North Shore area to Highway 128.

On October 27, 1998, MLC dedicated portions of Northshore Drive to Appellant

Hardin County, Tennessee (“Hardin County”) for public use. It is undisputed that the road

dedication document only dedicated specific sections of Northshore Drive to Hardin County.

The dedication document contains an express exclusion, stating, in relevant part, that

“Northshore Drive as the same fronts lots 1 through 7. . . shall remain [a] private road and

[is] not dedicated for public use.” It is also undisputed that the portion of Northshore Drive

that fronts lots one through seven of the North Shore development encompass that portion

of Northshore Drive where the Kleins’ accident occurred. Thus, according to the dedication

document, the first 6/10th of a mile of Northshore Drive extending from Highway 128 was

expressly not dedicated to Hardin County for public use. MLC alleges that, while it expressly

dedicated the portion of Northshore Drive that it owned, it also implicitly dedicated the first

6/10th of a mile of Northshore Drive, which connected the road to Highway 128. According

to MLC’s argument, the road dedication document did not expressly include the first 6/10th

of a mile because MLC only possessed an easement from the TVA over this portion of the

road. It is undisputed that the pothole, which the Kleins allege caused their accident, is

located at or about 1/10th of a mile from Highway 128, which is within the first 6/10th of a

mile section of the road that MLC did not specifically dedicate to Hardin County. Because

the Kleins’ accident occurred at or about the 1/10th of a mile from Highway 128, the

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question of ownership of this portion of Northshore Drive is paramount to the proper

adjudication of this case.

Concerning maintenance and use of Northshore Drive, the record indicates that MLC

has never prevented the public from using all of Northshore Drive. In fact, Hardin County

listed the entirety of Northshore Drive as a public road on the county’s road list from 2000

through 2007. However, in 2008, Northshore Drive was dropped from the county’s road list.

There is no explanation in the record as to why Northshore Drive was excluded from Hardin

County’s 2008 road list. Regardless, MLC alleges that Hardin County did not follow the

statutory requirements for closing or abandoning a public road because it did not notify the

landowners of its intent to abandon or close the road. After dedicating the road, MLC did

make improvements to Northshore Drive in order to enhance the North Shore development,

but MLC alleges that it made these improvements for the goodwill of its development project

and not out of an obligation or duty to make repairs. It is undisputed, however, that all

repairs made to the road surface, since it was tarred and chipped, were done by MLC and not

by Hardin County. Hardin County alleges that it is not required to maintain, or otherwise

exercise any control over the relevant portion of Northshore Drive. Specifically, it argues

that the area of Northshore Drive where the accident occurred is on land owned by the TVA

and controlled by the easement between MLC and the TVA, to which Hardin County is not

a party.

Hardin County further argues that it had no prior knowledge of the alleged pothole

before the accident on August 18, 2008. In his deposition, Paul Blount, Road Commissioner

for Hardin County, testified that he was unaware of the pothole and that his office had no

record of any contact concerning the alleged pothole. Moreover, there is no evidence that,

in 2008, any Highway Department employee traveled over the section of Northshore Drive

that is in question; in fact, the record indicates that there is no need for any Hardin County

employee to use that section of Northshore Drive to get to roads that are maintained by

Hardin County.

On September 29, 2008, the Kleins filed a complaint for personal injuries in the

Hardin County Circuit Court against Hardin County. On January 5, 2009, Hardin County

filed a motion to dismiss and an answer. The Circuit Court entered an agreed order, whereby

the Kleins were granted leave to amend their complaint to add MLC as a defendant. The

amended complaint was filed on March 23, 2009.

On June 1, 2010, Hardin County filed a motion for summary judgment. In its motion,

Hardin County asserts that it is immune from any liability in this case under the Tennessee

Governmental Tort Liability Act (“TGTLA”) and that immunity has not been waived

because: (1) it did not own and control the section of Northshore Drive where the accident

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occurred, and (2) even if there had been a finding of ownership and control by Hardin

County, it did not have the required actual or constructive knowledge of the pothole. On

October 1, 2010, MLC also requested summary judgment, arguing, in relevant part, that the

portion of the road where the Kleins’ accident occurred had been implicitly dedicated to

Hardin County.

Both motions for summary judgment were heard by the trial court on March 21, 2011.

Following the hearing, the court issued its oral ruling from the bench. Therein, the court

granted MLC’s motion and denied Hardin County’s motion. An order was entered on June

9, 2011, wherein the trial court granted MLC’s motion, finding, in relevant part, that MLC

“positively and unequivocally intended to permanently part with the entirety of Northshore

Drive to Hardin County. . .for public use and there can be no other reasonable explanation

of its conduct.” This order was made final and appealable by inclusion of Tennessee Rule

of Civil Procedure 54.02 language expressly stating that there is no just reason for delay of

entry of a final judgment. Also on June 9, 2011, the trial court entered a separate order,

denying Hardin County’s motion for summary judgment. Therein, the trial court specifically

found that “Hardin County owed duties with respect to repair and maintenance of the road.

. . .” Unlike the order granting MLC’s motion, the order denying Hardin County’s motion

for summary judgment was not made final by inclusion of Tennessee Rule of Civil Procedure

54.02 language. Hardin County did seek interlocutory appeal of this order under Tennessee

Rule of Appellate Procedure 9; however, the motion was denied by this Court. There is no

indication that Hardin County obtained a final order in the trial court after denial of its Rule

9 appeal.

Hardin County appeals, asking this Court to review both the grant of summary

judgment in favor of MLC, and the denial of Hardin County’s motion for summary

judgment. Specifically, Hardin County asks this Court to grant summary judgment in its

favor. Because the order denying Hardin County’s motion for summary judgment was not

made final and appealable in the trial court, this Court does not have jurisdiction to review

the denial of Hardin County’s motion for summary judgment. Tenn. R. App. P. 3(a).

However, because the order granting MLC’s motion for summary judgment is final for

purposes of appeal, we will review the question of whether the grant of summary judgment

was proper. Accordingly, the sole issue for review is:

1

As discussed, because of lack of jurisdiction, we cannot review the order denying Hardin County’s 1

motion for summary judgment. However, because of our conclusion herein that reasonable minds could

reach different conclusions concerning ownership of the disputed portion of the roadway, even if we could

review the denial of Hardin County’s motion for summary judgment, we would be unable to grant summary

judgment in favor of Hardin County at this juncture.

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Whether the trial court erred in granting summary judgment in

favor of MLC.

A trial court's decision to grant a motion for summary judgment presents a question

of law. Our review is therefore 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 the requirements of Tenn. R. Civ. P. 56 have been

satisfied." Mathews Partners, L.L.C. v. Lemme, No. M2008–01036–COA–R3–CV, 2009

WL 3172134, at *3 (citing Hunter v. Brown, 955 S.W.2d 49, 50–51 (Tenn. 1977)).

When a motion for summary judgment is made, the moving party has the burden of

showing that "there is no genuine issue as to any material fact and the moving party is

entitled to judgment as a matter of law." Tenn. R. Civ. P. 56.04. The moving party may

accomplish this by either: (1) affirmatively negating an essential element of the non-moving

party's claim; or (2) showing that the non-moving party will not be able to prove an essential

element at trial. Hannan v. Alltel Publ'g Co., 270 S.W.3d 1, 8–9 (Tenn. 2008). However,

“[i]t is not enough for the moving party to challenge the nonmoving party to ‘put up or shut

up' or even to cast doubt on a party's ability to prove an element at trial.” Id. at 8. If the

moving party's motion is properly supported, “[t]he burden of production then shifts to the

nonmoving party to show that a genuine issue of material fact exists.” Id. at 5 (citing Byrd

v. Hall, 847 S.W.2d 208, 215 (Tenn. 1993)). The non-moving party may accomplish this by:

“(1) pointing to evidence establishing material factual disputes that were overlooked or

ignored by the moving party; (2) rehabilitating the evidence attacked by the moving party;

(3) producing additional evidence establishing the existence of a genuine issue for the trial;

or (4) submitting an affidavit explaining the necessity for further discovery pursuant to Tenn.

R. Civ. P. 56.06.” Martin v. Norfolk S. Ry. Co., 271 S.W.3d 76, 84 (Tenn. 2008) (citations

omitted).

When reviewing the evidence, we must determine whether factual disputes exist. In

evaluating the trial court's decision, we review the evidence in the light most favorable to the

nonmoving party and draw all reasonable inferences in the nonmoving party's favor. Stovall

v. Clarke, 113 S.W.3d 715, 721 (Tenn. 2003). If we find a disputed fact, we must “determine

whether the fact is material to the claim or defense upon which summary judgment is

predicated and whether the disputed fact creates a genuine issue for trial.” Mathews

Partners, 2009 WL 3172134, at *3 (citing Byrd, 847 S .W.2d at 214). "A disputed fact is

material if it must be decided in order to resolve the substantive claim or defense at which

the motion is directed." Byrd, 847 S.W.2d at 215. A genuine issue exists if “a reasonable jury

could legitimately resolve the fact in favor of one side or the other.” Id. "Summary

[j]udgment is only appropriate when the facts and the legal conclusions drawn from the facts

reasonably permit only one conclusion." Landry v. South Cumberland Amoco, et al., No.

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E2009–01354–COA–R3–CV, 2010 WL 845390, at *3 (Tenn. Ct. App. March 10, 2010)

(citing Carvell v. Bottoms, 900 S.W.2d 23 (Tenn. 1995)). However, if there is any

uncertainty concerning a material fact, then summary judgment is not the appropriate

disposition. As stated by our Supreme Court in Evco Corp. v. Ross, 528 S.W.2d 20 (Tenn.

1975):

The summary judgment procedure was designed to provide a

quick, inexpensive means of concluding cases, in whole or in

part, upon issues as to which there is no dispute regarding the

material facts. Where there does exist a dispute as to facts which

are deemed material by the trial court, however, or where there

is uncertainty as to whether there may be such a dispute, the

duty of the trial court is clear. He [or she] is to overrule any

motion for summary judgment in such cases, because summary

judgment proceedings are not in any sense to be viewed as a

substitute for a trial of disputed factual issues.

Id. at 24–25.

In the instant case, the threshold question is whether MLC or Hardin County own by

express or implied dedication the portion of Northshore Drive on which the Kleins’ accident

occurred. It is undisputed that the road dedication document does not expressly dedicate the

first 6/10th of a mile of Northshore Drive running from Highway 128 to Hardin County.

Consequently, Hardin County ownership of this section of the road must be implicitly shown.

In Tennessee, private land can be implicitly dedicated to use as a public road.

McCord v. Hays, 302 S.W.2d 331 (Tenn. 1957). When an implied dedication is claimed, the

focus of the inquiry is whether the landowner intended to dedicate the land to a public use.

McCord, 302 S.W.2d 331; Johnson City v. Wolfe, 52 S.W. 991 (Tenn. 1899); Nicely v.

Nicely, 232 S.W.2d 421 (Tenn. Ct. App. 1949). The proof on the issue of intent to dedicate

must be unequivocal, Cole v. Dych, 535 S.W.2d 315 (Tenn. 1976), but intent may be inferred

from surrounding facts and circumstances, including the overt acts of the owner. Id.

The significance of the conduct of the landowner is assessed in Wolfe, where the court

said:

The public, as well as individuals, have a right to rely on the

conduct of the owner as indicative of his intent. If the acts are

such as would fairly and reasonably lead an ordinarily prudent

man to infer an intent to dedicate [the court will find that the

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road has been so dedicated].

Wolfe, 52 S.W. at 991 (quoting Elliott on Roads and Streets, § 92).

Among the factors that indicate an intent to dedicate are: (1) the landowner opens a

road to public travel, Burkitt, 59 S.W. 429; (2) acquiescence in the use of the road as a public

road, Nicely, 232 S.W.2d 421; and (3) the fact that the public has used the road for an

extended period of time, McCord, 302 S.W.2d 331. While dedication is not dependent on

duration of the use, extended use is a circumstance tending to show an intent to dedicate.

Cole, 535 S.W.2d 315. Finally, an intent to dedicate is inferrable when the roadway is

repaired and maintained by the public. Burkitt, 59 S.W. 429 (citing Sharp v. Mynatt, 69

Tenn. 375 (1878)).

Although the factsin this case are mostly undisputed, the existence of undisputed facts

does not compel a grant of summary judgment. See Price v. Mercury Supply Co., Inc., 682

S.W.2d 924, 929 (Tenn. Ct. App.1984) (“Even if the basic facts are not in dispute, this Court

has held that granting a summary judgment is not proper when the parties disagree about the

inferences to be drawn from the facts.”). Summary judgment is appropriate "when the

undisputed facts, as well as the inferences reasonably drawn from the undisputed facts,

support only one conclusion—that the moving party is entitled to a judgment as a matter of

law." See also Green v. Green, 293 S.W.3d 493, 513 (Tenn. 2009) (citing Griffis v.

Davidson County Metropolitan Gov’t, 164 S.W.3d 267, 283–84 (Tenn. 2005)). "[A] trial

court is not to ‘weigh’ the evidence when evaluating a motion for summary judgment."

Lawrence County Educ. Ass'n v. Lawrence County Bd. of Educ., 244 S.W.3d 302, 320

(Tenn. 2007) (citing Byrd, 847 S.W.2d at 211). "[W]hen there is any dispute regarding the

reasonable inferences that can be drawn from the undisputed facts . . . a summary judgment

motion should not be granted." Evco, 528 S.W.2d at 24-25; see also Martin v. Norfolk

Southern Railway Co., 271 S.W.3d 76, 89 (Tenn. 2008) (citing Brown v. Birman Managed

Care, Inc., 42 S.W.3d 62, 66 (Tenn. 2001); Mason v. Seaton, 942 S.W.2d 470, 473 (Tenn.

1997)).

In this case, MLC contends, and the trial court agreed, that the evidence establishes

an implied dedication of Northshore Drive for public use and an acceptance by Hardin

County; Hardin County submits that the evidence does not establish these facts. In granting

the motion for summary judgment in favor of MLC, the trial court stated that:

It is without question that [the disputed section of Northshore Drive]

was a public road. It was used by the public. It is without question that

portions [] were dedicated, and that there’s an implied dedication as to

the portion that would go from the [specifically] dedicated portions of

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the [road].

Based upon the foregoing law on implicit dedications, the use of the road by the

public is only one of the factors to be considered in determining the parties’ intent. Although

Northshore Drive was used by the public, the road dedication documentspecifically excludes

that portion of Northshore Drive where the Kleins’ accident occurred. Because there is a

specific exclusion of this section of the road, the evidence of the parties’ intent to implicitly

dedicate the contested area of the road must be unequivocal. Although the road is used by

the public, there is the additional inquiry concerning maintenance. Here, it is undisputed that

Hardin County did not maintain this road. As noted above, since it was constructed, the road

has been maintained by MLC. This fact, along with the specific exclusion of the first 6/10th

of a mile of the road in the dedication, lead us to conclude that "reasonable minds could

justifiably reach different conclusions based on the evidence at hand[,]" Green, 293 S.W.3d

at 514 (citations omitted), and that the undisputed, yet competing, facts require a weighing

of the evidence, rendering summary judgment inappropriate. Thus, we cannot conclude, as

a matter of law, that the disputed portion of the road was impliedly dedicated to Hardin

County. See Tenn. R. Civ. P. 56.04 (requiring that the moving party be “entitled to judgment

as a matter of law” to grant summary judgment). Accordingly, we reverse the trial court's

grant of summary judgment and remand for a trial on the merits.

For the foregoing reasons, we reverse the trial court's grant of summary judgment in

favor of MLC. The case is remanded for a trial on the merits. Costs of this appeal are taxed

one-half to Appellant, Hardin County, Tennessee, and its surety, and one-half to Appellee,

Montana Land Company, for all of which execution may issue if necessary.

_________________________________

J. STEVEN STAFFORD, JUDGE

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