### IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE WILLIAM F. CONLEY, ET UX. v. HARMONY BLUE GRANITE CO., INC.

Direct Appeal from the Chancery Court for Knox County No. 136095-2 Daryl R. Fansler, Chancellor

No. E1999-00265-COA-R3-CV - Decided June 27, 2000

This is a suit wherein the Plaintiffs seek damages by reason of defe ctive construction of a mausoleum by the Defendant. The Trial Court found that the suit was barred by T.C.A. 28-3- 202, the four-y

ear statute of re

pose. We Affirm. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed GODDA RD, P.J. , deliv

ered t he opin ion of t he cour t, in wh ich FRA NKS and SUSANO , JJ. joined. Lewis S. Howar

d of Knoxville, Tenne

ssee, for the App

ellants William F. Con

ley and wif

e Betty Jo Conley James S. MacDonald of Knoxville, Tennessee, for the Appellee Harmony Blue Granite Co., I nc.

OPINION
William F. Conley and his wife Betty Jo Conley sue Harmony Blue Granite Co., Inc., for damages they

sustained by reason of the defective construction of a mausoleum by Blue Granite. The Trial Court granted a summary judgment to the De fendant upon his finding that the Conleys’ claim was barred by T.C.A. 28-3-202, the four-year statute of repose. The Conleys a

ppeal, raising t

he following two i

ssues:-2- 1. Is the Plaintiffs’ cause of action against the Defendant subject to and controlled by the four-yea r statute of response, T.C.A. § 28-3-201, et seq . as determined by the Chancellor? 2. Under the fac

ts of this case in wh

ich the Defenda

nt has engage

d in fraudulent cond

uct by contr

acting for and

building a commer

cial structure in Tennessee without a Tennessee contractor’s licence, the appropriate statute of limitation by statute becomes and is T.C.A. § 28-3-105, the three (3) y ear discovery s

tatute governin

g property

tort actions. A recent opinion of our Supreme Court, Staples v. CBL & Associates, Inc. , 15 S.W.3d 83, 89 (Tenn. 2

000), restates th

e standard of re

view as to summary

judgments: The standards governing the assessment of evidence in the summary judgment context a

re also well esta

blished. Courts must v

iew the evidence

in the light most favo

rable to the nonmov

ing party a

nd must also draw a

ll reasonable inferences in the nonmoving party’s fa vor. See Robinson v. Omer , 952 S.W.2d at 426; Byrd v. Hall, 847 S.W.2d at 210-11 . Courts should gra nt a summary judgment only when both the fac ts and the inferences to be drawn from the facts permit a reasonable person to reach only one conclusion. See McCall v. Wilder, 913 S.W.2d 150, 153 (T enn.1995); Carvell v. Bottoms , 900 S.W.2d 23,26 (Tenn.1995). The original proposal submitted by Blue Granite to Mr. Conley is dated March 20, 1979, and was accepted by Mr. Conley on March 21. One of the conditions of the proposal was that “this order is subject to acceptance by our credit depar tment after your approval.” The mausoleum was completed in the fall of 1979. There is proof in the record to support the following allegations found in Section 5 of the complaint:

5. During the Spring of 1997 Plaintiff Conley first discovered an apparent and obvious shifting of the granite blocks, which then showed evidence of cracking, and shifting of the mausoleum and a soils engineering firm in an effort to determine the cause of the mausoleum shifting and deterioration. T

he findings of a

ll such investiga

tions indicated the

probability of faulty construction.1 28-3-105. Property tort actions -- Statutory liabilities. --The following ac tions shall be commenced within three (3) years from the acc ruing of the cause of action: (1) Act ion s fo r injur ies to p ers ona l or real pro pert y.

-3- As already noted, the Trial Court was of the opinion that the Conleys’ claim was barred by the four-year statute of repose, T.C.A. 28-3-202: 28-3-202. Limitation of actions. -- All actions to recover damages for any deficiency in the desig n, planning, supervision, observation of construction, or c

onstruction of an i

mprovement to rea

l property,

for injury to property, r

eal or personal,

arising out of an

y such defic

iency, or f

or injury to the person or for wrongful death arising out of any such deficiency, shall be brought again st any person pe rforming or f urnishing t he design, p lanning, supervision, obse

rvation of constr

uction, construct

ion of, or land surv

eying in connection with, such an improvement within four (4) years after substantial completion of such

an improvement. In their appeal, the Plaintiffs point out T.C.A. 28-3-205(b), which removes the statute of repose as a defense to a party who is guilty of fraud or conceals a cause of action. The Plaintiffs further assert that under the authority of Wat ts v . Pu tna m Co unt y. , 525 S.W.2d 488 (Tenn. 1975), T.C.A. 28-3-105, 1 the three-year discovery statute relative to “property tort actions,” then becomes the appropriate limiting statute.

28-3-205. Limitation not defense for party in possession, guilty of fraud, or who conceals cause of action. -- (a) . . . . (b) The limitation h

ereby pro vided shall not be a

vailable as a def

ense to any person who shall have been guilty of fraud in performing or furnishing the design, planning, supervision, observation of construction, construction of, or land surveying, in connection with such an improvement, or to any person who shall wrongfully conceal any such cause of action. The fallacy with this reasoning is that T.C.A. 28-3-205(b) above quoted speaks of “fraud in performing or furnishing the design, planning, supervision, observation of construc tion, construction of, o

r land survey

ing, in connecti

on with such an impr

ovement.” The fa

ilure to have a license to do business in our view is not a fraud contemplated by subsection (b). Additionally, subsection (b) provides that the statute of repose is unavailable to those who-4-

“wrongfully conceal any

such cause of action.” There is absolutely nothing in the recor d to show that Harmony Blue concealed any defects in the mausoleum or the fact that it did not have a license. We should also point ou t that T.C.A. 48-25- 101)(b)(6) prov ides an exception to the requirement of a certificate of authority to transact business in Tenne ssee if the order requires, as it did

in the case at bar

, acceptance o

utside the state be

fore one become

s a “contractor.” Moreover, T.C.A. 48-25-102(f) provides that “the failure of a fore ign corporation to obtain a certif

icate of authori

ty does not imp

air the validity

of its corporate

acts or prevent i

t from defending any proceeding in this state.”

For the foregoing reasons the judgment of the Trial Court is affirmed and the cause remanded for collection of costs below. Costs of appeal are adjudged ag ainst Plaintiffs Wil lia m F. Con ley a nd h is w ife Bett y Jo C onl ey and the ir s uret y.