IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

July 9, 2012 Session

CHARLES RAYMOND LOVEDAY ET AL. v. BLOUNT COUNTY,

TENNESSEE ET AL.

Appeal from the Circuit Court for Blount County

No. L-17304 David R. Duggan, Judge

No. E2011-01713-COA-R3-CV - Filed July 24, 2012

Charles Raymond Loveday and his wife, Virginia Hope Loveday (collectively “the

Plaintiffs”), filed this action in January 2011 against Blount County and the Blount County

School Board (collectively “the Defendants”) to recover for flood damage to their property

allegedly caused by the construction of a new school next to the Plaintiffs’ property. The

school was built in 2007. The Plaintiffs allegedly sustained “permanent” damage in 2008,

2009 and 2010. The Defendants filed a motion to dismiss asserting that the action was

barred by the statute of limitations for a taking. The trial court granted the motion. The

Plaintiffs appeal. We affirm.

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

Affirmed; Case Remanded

CHARLES D. SUSANO, JR., J., delivered the opinion of the Court, in which HERSCHEL P.

FRANKS, P.J., and D. MICHAEL SWINEY, J., joined.

Robert W. White and Joe Nicholson, Maryville, Tennessee, for the appellants, Charles

Raymond Loveday and Virginia Hope Loveday.

Robert N. Goddard, Maryville, Tennessee, for the appellees, Blount County, Tennessee, and

Blount County School Board.
OPINION

I.

A.

The Plaintiffs own property located at 343 South Old Grey Ridge Road, Friendsville

(“the Property” or “the Plaintiffs’ Property”). They reside on the Property and have utilized

it “for grazing and feeding of livestock and for the growing of crops and livestock feed.”

According to the complaint,

[o]n or about February, 2007, the Defendants began construction

on the Union Grove Elementary School, located at 330 Old Grey

Ridge Road, Friendsville, TN, 37737, a plot of land owned by

one of the Defendants that is contiguous to [the] Plaintiffs’

Property.

On or . . . shortly after construction began, [the] Plaintiffs

became aware of water runoff damage to their Property caused

by the runoff from the Defendants’ property, including but not

limited to the failure of the Defendants’ detention and runoff

pond, which was constructed at the direction of [the]

Defendants.

As a result of the water damage, the Property is no longer usable

for grazing and feeding of livestock or for growing crops and

livestock feed.

Such water damage is permanent in nature.

(Emphasis added.) The complaint further alleges that the flooding amounts to a taking of the

Property because the Plaintiffs “have been put in a position that they now own property that

they cannot utilize to its full economic value.” The complaint states that the “diminished

value” of the Property, i.e., “the difference between the market value of the Property prior

to the flooding and the current market value,” is $1,000,000.

Alternatively, the complaint alleges that the new school is in a “defective condition”

that constitutes a nuisance. The complaint states that

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[the] Defendants’ construction project of a new school at the

location described above, resulting in the flooding of [the]

Plaintiffs’ contiguous Property, annoyed and disturbed [the]

Plaintiffs’ ability to freely use their Property and rendered its

ordinary use and physical occupation uncomfortable.

[The] Defendants received notice of the annoyance and

disturbance from the permanent flood damage to [the] Plaintiff’s

Property [in] 2008, 2009 and 2010 when [the] Plaintiffs reported

the annoyance and disturbance to representatives of the

Defendants in a meeting on several occasions.

At the meeting between the Plaintiffs and [the] Defendants’

representatives in 2009, [the] Plaintiffs were promised that the

Defendants would undertake complete remediation of the

flooding problem.

This annoyance and disturbance remains and is ongoing in

nature.

(Emphasis added.)

Finally, the complaint alleges that the Defendants owed a duty to the Plaintiffs which

they breached by “causing and/or allowing water to flood [the] Plaintiffs’ Property . . .

resulting in permanent damage and a taking of [the] Plaintiffs’ Property.” (Emphasis added.)

The Defendants filed a motion to dismiss “pursuant to Rule 12.02(6) of the Tennessee

Rules of Civil Procedure . . . based on the applicable statutes of limitations contained in

T.C.A. § 29-16-124 . . . .” The motion asserts that “when the Plaintiffs’ cause of action is

1

actually based in inverse condemnation there is no cause of action for common law nuisance

or negligence.” The motion asserts, alternatively, that a common law nuisance claim or a

This is the statute of limitations applicable to takings. The statute states, in pertinent part: 1

The owners of land shall, in such cases, commence proceedings within

twelve (12) months after the land has been actually taken possession of, and

the work of the proposed internal improvement begun . . . .

Tenn. Code Ann. § 29-16-124 (2000).

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negligence claim is subject to the Governmental Tort Liability Act’s one-year statute of

limitations, and is therefore barred.

B.

The trial court granted the motion to dismiss. The order dismissing the case states,

in pertinent part, as follows:

[i]n the present case, and by their own factual allegations as

contained at paragraphs 31 and 40 of their complaint, [the]

Plaintiffs knew as early as 2008 that the injury to their property

was permanent. They claim to have put [the] Defendants on

notice of permanent flood damage as early as 2008, and indeed

claim to have delivered such notice to [the] Defendants in 2008,

2009, and 2010. In addition, [the] Plaintiffs failed to file their

complaint within one year of the time that [the] Defendants’

representatives allegedly promised to remediate the problem,

and yet failed to do so; despite the fact that [the] Plaintiffs knew

that the injury to their property was permanent in nature.

[The] Plaintiffs did not file their suit until January 27, 2011,

more than one year after the time that they knew they had

suffered a permanent injury to their property, and more than one

year after their meeting with [the] Defendants’ representatives.

Given that the key factor, in determining when the statute of

limitations begins to run, is when the property owner knows that

the injury to his property is a permanent injury rather than a

temporary one, and given that [the] Plaintiffs had such

knowledge in 2008 despite any alleged representations of [the]

Defendants’ representatives in 2009, [the] Plaintiffs did not

timely file their complaint.

Accordingly, the Court finds that [the] Plaintiffs’ complaint,

with respect to their inverse condemnation claim, is barred by

the applicable statute of limitations.

[The] Plaintiffs have also stated claims for common law

nuisance and negligence. This Court has already found,

however, that [the] Plaintiffs have stated a prima facie case for

inverse condemnation. Once a court determines, under the facts

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of a case, that a taking has occurred, a plaintiff is precluded

from recovering on a temporary nuisance or negligence claim.

Peterson v. Putnam County, Tennessee, [No. M2005-02222-

COA-R3-CV, 2006 WL 3007516 (Tenn. Ct. App. M.S., filed

Oct. 19, 2006)]; Large v. Greene County, Tennessee, [No.

E2008-02764-COA-R3-CV, 2009 WL 5083482 (Tenn.Ct. App.,

E.S., filed Dec. 28, 2009)].

It is also noted that to the extent [the] Plaintiffs are seeking

damages from [the] Defendants, even if their complaint could

proceed, their claim for damages would be barred by the

applicable one-year statute of limitations contained within the

Tennessee Governmental Tort Liability Act, Tenn Code Ann. §

29-20-305(B). (It is also noted that the statute of limitations

found at Tenn. Code Ann. § 29-20-305(B) would not bar [the]

Plaintiffs’ action for an injunction for abatement of the

nuisance.)

Nevertheless, because [the] Plaintiffs have stated a cause of

action for inverse condemnation and are, therefore, precluded

from pursuing a temporary nuisance or negligence claim against

[the] Defendants, it is not necessary for this Court to apply the

statute of limitations found within the Governmental Tort

Liability Act.

Accordingly, . . . [the] Defendants’ motion to dismiss is granted.

. . .

II.

The issue as stated verbatim in the Plaintiffs’ brief is:

Did the Trial Court err in granting [the Defendants’] Motion to

Dismiss under Rule 12.02(6) of the Tennessee Rules of Civil

Procedure by finding that the [Plaintiffs] were precluded from

pursuing claims for nuisance and negligence, when they had

alternatively pled a cause of action for inverse condemnation,

when the cause of action for inverse condemnation has passed

before the filing of the Complaint in this cause?

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III.

Our standard of review in this case is as articulated in Trau-Med of America, Inc. v.

Allstate Ins., 71 S.W.3d 691, 696-97 (Tenn. 2002):

A Rule 12.02(6) motion to dismiss only seeks to determine

whether the pleadings state a claim upon which relief can be

granted. Such a motion challenges the legal sufficiency of the

complaint, not the strength of the plaintiff’s proof, and,

therefore, matters outside the pleadingsshould not be considered

in deciding whether to grant the motion. See Bell ex rel. Snyder

v. Icard, Merrill, Cullis, Timm, Furen & Ginsburg, P.A., 986

S.W.2d 550, 554 (Tenn. 1999). In reviewing a motion to

dismiss, the appellate court must construe the complaint

liberally, presuming all factual allegations to be true and giving

the plaintiff the benefit of all reasonable inferences. See Pursell

v. First Am. Nat’l Bank, 937 S.W.2d 838, 840 (Tenn. 1996). It

is well-settled that a complaint should not be dismissed for

failure to state a claim unless it appears that the plaintiff can

prove no set of facts in support of his or her claim that would

warrant relief. See Doe v. Sundquist, 2 S.W.3d 919, 922 (Tenn.

1999); Fuerst v. Methodist Hosp. S., 566 S.W.2d 847, 848

(Tenn. 1978). Great specificity in the pleadings is ordinarily not

required to survive a motion to dismiss; it is enough that the

complaint set forth “a short and plain statement of the claim

showing that the pleader is entitled to relief.” White v. Revco

Disc. Drug Ctrs., Inc., 33 S.W.3d 713, 718 (Tenn. 2000) (citing

Tenn. R. Civ. P. 8.01). We review the trial court's legal

conclusions de novo without giving any presumption of

correctness to those conclusions. Id.

IV.

The Plaintiffs concede that their complaint states a claim for inverse condemnation

and that the inverse condemnation claim is time-barred. They argue that the complaint also

states a claim for nuisance and negligence and that they have a right to plead and proceed on

the alternative theories even if their inverse condemnation claim is barred. They rely on

Tenn. R. Civ. P. 8.05(2) which states:

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A party may set forth two (2) or more statements of a claim or

defense alternatively or hypothetically. When two (2) or more

statements are made in the alternative and one (1) of them if

made independently would be sufficient, the pleading is not

made insufficient by the insufficiency of one or more of the

alternative statements. A party may also state as many separate

claims or defenses as he or she has, regardless of consistency.

The Plaintiffs argue that the trial court’s reliance upon Large v. Greene County,

Tennessee, No. E2008-02764-COA-R3-CV, 2009 WL 5083482 (Tenn. Ct. App. E.S., filed

Dec. 28, 2009) is misplaced because Large, unlike this case, was decided on a motion for

summary judgment. They argue that the essential facts were undisputed in Large whereas

in the present case the facts are still in dispute. The essence of the Plaintiffs’ argument, as

we understand it, is that some set of facts consistent with the complaint may entitle them to

relief under the nuisance claim, therefore the motion to dismiss should have been denied.

We acknowledge that our opinion in Large involved a summary judgment, but that

distinction is not dispositive. In Large, we relied upon our earlier opinion in Peterson v.

Putnam County, No. M2005-02222-COA-R3-CV, 2006 WL 3007516 (Tenn. Ct. App. M.S.,

filed Oct. 19, 2006). Peterson was also a summary judgment case, but our opinion in that

case includes the following discussion of two Supreme Court cases that affirmed dismissals

of nuisance claims based on the determination in each case that the complaint alleged a

taking rather than a nuisance:

The first issue with respect to the plaintiffs’ common law

nuisance claim – i.e., whether the plaintiffs’ proper cause of

action was a claim for inverse condemnation, rather than a

temporary nuisance claim – has been addressed by the courts of

this State on numerous occasions. . . . Where the adverse effect

amounts to a “taking” of property by the government, the

plaintiff’s proper remedy is one for inverse condemnation under

the eminent domain statutes. See T.C.A. § 29-16-123, 124; see

Pleasant View Util. Dist. v. Vrandenburg, 545 S.W.2d 733

(Tenn. 1977); Monday v. Knox County, 417 S.W.2d 536 (Tenn.

1967); Smith v. Maury County, No. 01A01-9804-CH-00207,

1999 WL 675135 (Tenn. Ct. App. M.S., filed Sept. 1, 1999).

In the case of Monday v. Knox County, the plaintiff filed a

common law nuisance action against the county, alleging that

the county’s construction of a nearby highway had caused

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excessive amounts of water to collect on the plaintiff’s property.

417 S.W.2d at 536. The plaintiff sought a mandatory injunction.

Id. The trial court dismissed the plaintiffs’ suit, holding that the

plaintiffs’ allegations amounted to a “taking” by the county and

that the exclusive remedy was a claim under the eminent domain

statutes. Id. The Supreme Court affirmed, stating that “there

has been a taking of [the plaintiff’s] property for public use for

which the remedy is reverse condemnation proceedings and [the

county] would not be liable on the theory of a nuisance.” Id. at

537. Notably, the plaintiff argued that the intrusion only

amounted to a temporary nuisance because the condition causing

the damages could be remedied by certain changes in the

construction of the highway. Id. The Court rejected this

argument by stating that “the Court has no authority to order

such change in construction; for to do so would in effect be

constructing public roads by judicial order.” Id.

Similarly, in Pleasant View Util. Dist. v. Vrandenburg, the

plaintiffs filed an action to enjoin a utility district from

discharging thousands of gallons of waste water on their

property. 545 S.W.2d at 734. The utility district moved to

dismiss the plaintiffs’ suit, primarily arguing that its actions

amounted to a “taking,” rather than a nuisance. Id. The utility

district asserted that the plaintiffs’ proper remedy was an action

for inverse condemnation, and furthermore, that any inverse

condemnation action was now barred by the one-year statute of

limitations for such actions. Id. at 734-35. The trial court

granted the utility district’s motion to dismiss. Id. at 735. As

noted by the Supreme Court, the Court of Appeals reversed and

remanded, concluding that the plaintiffs’ suit was “ ‘not a suit

for damages in reverse condemnation [but] is primarily an

injunction suit praying for injunctive and general relief.’ ” Id.

(bracketing in original). The Supreme Court reversed the Court

of Appeals and affirmed the trial court’s judgment. Id. at

736. . . .

Id. at *9 (emphasis added).

One key fact that distinguishes a claim of temporary nuisance from a taking by a

governmental entity is damage to the property that is permanent in nature. Id. at 5-6. “Only

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when the injury is permanent in nature can there be a ‘taking’ within the contemplation of

the statute; and until there is a ‘taking’ the statute of limitations does not begin to run.” Id.

(quoting Knox County v. Moncier, 455 S.W.2d 153, 156 (Tenn. 1970)). Conversely, there

is a taking and the statute of limitations begins to run when the owner of the damaged

property is “charged with knowledge that the injury to his property [is] permanent.” Id.

(quoting Moncier, 455 S.W.2d at 156). One indication that the injury is permanent and

therefore a taking is damage to the market value of the property. Id. at 4 (citing Jackson v.

Metro Knoxville Airport Auth., 922 S.W.2d 860, 865 (Tenn. 1996)).

We conclude that even if Peterson allows a plaintiff to maintain alternative pleadings

sounding in both nuisance and taking, it does not allow a plaintiff to proceed on a nuisance

theory when the allegations of the complaint allow only one conclusion, i.e., that he or she

knew that the damage to the property at issue is permanent. We further hold that the

allegations in the complaint in the present case only allow the conclusion that the damage to

the Plaintiffs’ property is permanent and that they knew it was permanent more than one year

before they filed the complaint in 2011. The complaint states that “ [o]n or shortly after

construction began [in 2007], [the] Plaintiffs became aware of water runoff damage to their

Property.” The complaint specifically states that the “water damage is permanent.” The

complaint states that the water damage reduced the value of the Plaintiffs’ Property by

$1,000,000. Even the “nuisance” count of the complaint refers to the damage as “permanent

flood damage” which was reported to the Defendants as such in a meeting between the

parties in 2009. The damages are alleged to be the result of a “defective condition” in the

construction. The “negligence” count repeats allegations of “permanent damage” and

diminished value that date back to the construction of the school. Allegedly, the Defendants

promised to undertake remediation in 2009, but that was more than one year before the filing

of the complaint. Even if there was additional damage in 2010, it is well established that the

statute of limitations begins to run when the injured party knows the nature of the injury; he

or she cannot wait until the full extent of the injury becomes apparent. See Peterson at *12.

We also note that the complaint contains not one allegation that the alleged nuisance is

“temporary.” The Plaintiffs point to the allegation that the “disturbance remains and is

ongoing.” That language is entirely consistent with the numerous allegations of permanent

damage characteristic of a taking. It follows that the trial court did not err in granting the

Defendants’ motion to dismiss.

V.

The judgment of the trial court is affirmed. Costs on appeal are taxed to the

appellants, Charles Raymond Loveday and Virginia Hope Loveday. This case is remanded,

pursuant to applicable law, for the collection of costs assessed by the trial court.

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_______________________________

CHARLES D. SUSANO, JR., JUDGE

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