### IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE Assigned on Briefs April 4

, 2016

TED COPE
, ET AL



### . v. HAWKINS COUNTY, TENNESSEE

Appeal from the C ircuit Court for Hawkins County

No. 13CV0077 Thomas J. Wright
, Judge

No. E2015

- 0 1615

- COA

- R3

- CV

- FILED

- MAY 25, 2016

Several property owners brought suit against the county fo r inverse condemnation when

the county commission ‟s road committee rescinded its recommendati on to accept a road

as a coun ty road. The county sought dismissal for failure to state a claim upon which relief can be granted. The trial court dismissed the suit. The property own er s appeal.

We affirm.

Tenn. R. App. P. 3 Appeal as of R ight ; Judgment of the Circuit C ourt

A ffirmed ; Case Remanded

J O HN W. M C C LARTY

, J.

, delivered the opinion of the Co urt, in which J. S TEVEN
S TAFFORD

, P.J., W.S., and A NDY D. B ENNETT

, J

., joined.

R. B. Baird, III, Rogersville

, Tennessee, for the appellants, Ted Cope, Edwin Cope, and Aaron Cope

.

James O. Phillips, III, Rogersville , Tennessee, for the appellee, Hawkins County,

Tennessee

.

MEMORANDUM OPINION 1

On August 27, 2010, the Hawkins County Commission Road Committ ee (“ the
Road Committee” ) voted to issue a recommendation approvi ng a road known as Red

1 Rule 10 of the Rules of the Court of Appeals of Tennessee provides as follows :

This Court, with the concurrence of all judges participating in the case, may affirm, reverse or modify the actions of the trial court by memorandum opinion when a formal opinion would have no precedential value. When a case is decided by memorandum opinion it shall b e designated „MEMORANDUM OPINION,‟ shall not be published, and

shall not be cited or relied on for an y reason in any unrelated case.- 2

-

Rock Lane and offered by Ted Cope, Edwin Cope, and Aaron Cope (collectively “Property Owners”) as a county road. In 2012, Property Owners began preparing to sell the land serviced by Red Rock Lane. They soon discovered that the Haw kins County

Commissio n (“the County Commission”) never accepted the recommendation.

On March 22, 2012, the Road Committee held a meeting in which it voted to

rescind the initial recommendation to approve Red Rock Lane as a county road. Property

Owners filed suit against Hawkins County (“the County”), alleging that the “action . . . amounts to a „taking‟ for inverse condemnation purposes.” They claimed that the road had been treated as a public road following the initial recommendation , evidencing an

im plied ratification of the recommendation. They asserted that the re versal of the

recommendation reduced the market value of their property and caused them to incur additional expenses to maintain the road. They further claimed that the March 22 meeting w as “likely” held in violation of “the Tennessee Open Meeting Act for lack of notice to interested parties.”

The County denied liability and any potential violation of the Tennessee Open Meeting Act. The County also filed a motion to dismiss, alleging t hat the complaint failed to state a cause of action upon which relief can be granted. They asserted that a “taking” of real property never occurred because th e County Commission never approv ed Red Rock Lane as a county road. They claimed that the Road Co mmittee merely issued a

recom mendation and argued that the County Commission‟s failure to accept the recommendation was not an implied ratification of the recommendation. Property Owners responded that dismissal was inappropriate when they clearly alleged “a „taking‟ claim which is both compensable and redressable by [the trial court].”

F ollowing a hearing, t he trial court granted the County‟s motion to dismiss for “failure to state a claim upon which relief can be granted” pursuant to Rule 12.02(6) of

the Tennessee Rules of Civil Procedure. “ A R ule 12.02(6) motion challenges „ only the legal sufficiency of th e complaint, no t the strength of the plaintiff‟ s proof or evidence.” ‟ Phillips v. Montgomery C n ty. , 442 S.W.3d 233, 237 (Tenn. 2014) (quoting Webb v. Nashville Area Habitat for Humanity

, Inc.

, 346 S.W.3d 422, 426 (Tenn. 2011) )

. “In considering a motion t o dismiss, courts must construe the complaint liberally, presuming all factual allegations to be true and giving the plaintiff the benefit of all reasonable
inferences.” Stewart v. Schofield

, 368 S.W.3d 457, 462 (Tenn. 2012). “A trial court

sh ould grant a motion to dismiss only when it appears that the plaintiff can prove no set of facts in support of the claim that would entitle the plaintiff to relief.” Webb , 346

S.W.3d at 426 (internal quotation and citations omitted). The trial court‟s grant of the motion to dismiss is subject to a de novo review with no presumption of correctness.

Phill ips , 442 S.W.3d at 237.- 3

-

Property Owners allege that the court erred in entering an order of dismissal when the complaint contained se veral relevant and material facts that merited consideration, e.g., the fact that Red Rock Lane had been treated like a county road and the fact that they incurred damages when the Road Committee voted to rescind the recommendation. The County responds th at dismissal was appropriate when Property Owners failed to allege any legal basis that would constitute a valid cause of action.

The Tennessee Supreme Court summarized the history of inverse condemnation

actions in Tennessee as follows:

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. 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. The Tennessee General Assembly has implemented th is provision by its passage of eminent domain and inverse condemnation

statutes.

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 p roceedings under the government‟ s power of

eminent domain have been instituted. A taking of real property occurs when a governmental defendant with the power of eminent domain performs an autho rized action that destroys, interrupts, or interferes with the common and necessary use of real property of another. Not every destruction or injury to property caused by governmental action, however, constitutes a taking under article I, section 21 of th e Tennessee

Constitution.

Edwards v. Hallsdale

- Powell Util. Dist. Knox C n ty., Tenn. , 115 S.W.3d 461, 464

- 65 (Tenn. 2003) (internal citations omitted). In Edwards , the Supreme Court recognized two classifications of takings, physical occupation takings and nuisance

- type takings. Id. at 465. In 2014, the Supreme Court recognized that “the Takings Clause of the United States Constitution, article I, section 21 of t he Tennessee Constitution [also] encompasses regulatory takings.” Phillips , 442 S.W.3d at 244

- 45.

While Property Owners may have suffered injury as a result of the County‟s refusal to designate Red Rock Lane as a county road, a taking of real property ne ver- 4

-

occurred. Taking all reasonable inferences in favor of Property Owners as we are constrained to do in our review of the case, we conclude that the complaint failed to state a cause of action for which they may seek compensation under Tennessee‟s inver se condemnation statute , codified at Tennessee Code Annotated section 29

- 16

- 123. 2 The judgment of the trial court is affirmed, and the case is remanded to the trial court for such further proceedings as may be necessary. Costs of the appeal are taxed equ ally to the appellants, Ted Cope, Edwin Cope, and Aaron Cope

.

_________________________________ JOHN W. Mc CLARTY , JUDGE

2 “ If, however, such person or company has actually taken possession of such land, occupying it for the purposes of intern al improvement, the owner of such land may petition for a jury of inquest, in which case the same proceedings may be had, as near as may be, as hereinbefore provided; or the owner may sue for damages in the ordinary way, in which case the jury shall lay of f the land by metes and bounds and assess the damages, as upon the trial of an appeal from the return of a jury of inquest. ”