FILED

October 26, 1998

Cecil W. Crowson

Appellate Court Clerk

IN THE SUPREME COURT OF TENNESSEE

AT KNOXVILLE

(HEARD AT JOHNSON CITY)

JAMES AND CAROLYN CHRISMAN ) FOR PUBLICATION

)

 Plaintiffs-Appellees ) FILED: OCTOBER 26, 1998 

)

v. ) KNOX COUNTY 

)

HILL HOME DEVELOPMENT, INC. ) HON. WHEELER ROSENBALM,

and JIM HILL ) JUDGE

 )

 Defendants-Appellants ) NO. 03-S-01-9706-CV-00077

For Appellees: For Appellants:

DONALD E. OVERTON TERRILL L. ADKINS

GLENNA W. OVERTON Knoxville, TN

Knoxville, TN

OPINION

REVERSED BIRCH, J.
1Oral argument was heard in this case in Johnson City,

Tennessee, as part of this Court’s S.C.A.L.E.S. (Supreme Court

Advancing Legal Education for Students) project.

2

We granted permission to appeal under Rule 11, Tenn. R.

App. P.,1 to Jim Hill and Hill Home Development, Inc., the

defendants, in order to determine whether they are entitled to

summary judgment on the plaintiffs’ claims of concealment or

nuisance. With regard to the claim of concealment, we find that

Hill is entitled to summary judgment because he has demonstrated

that the plaintiffs are unable to prove an essential element of

their claim. As respects the claim of nuisance, we find that the

statute of repose bars that claim, thereby entitling the defendants

to summary judgment. 

The record indicates that Hill Home Development, a

corporation owned by Hill, developed a Knoxville subdivision known

as Fountain Gate I. As the developer, Hill Home Development

contracted with civil engineering and construction companies for

the design and installation of a surface water drainage system.

The plaintiffs, James and Carolyn Chrisman, negotiated with Hill

and purchased a house and lot in Fountain Gate I on December 8,

1988. 

A few weeks after moving in, the plaintiffs noticed heavy

flooding in their yard, in the adjacent property, and in the street

in front of their house. They describe this flooding as a “lake”

in their backyard and a “river” running through the area. In June

1989, approximately six months after moving in, flood water damaged

the components of their heat-air conditioning unit which was
2The other defendants included various engineering and

construction companies which helped to develop Fountain Gate I and

a neighboring subdivision, Fountain Gate II, as well as the realty

company through which the plaintiffs’ property was listed. The

Court of Appeals affirmed the summary judgment entered in favor of

these defendants, and they are not parties to this appeal. 

3

located next to the house, in a “self-contained concrete area,”

with a brick retaining wall around it. In June 1992, after a

severe storm, water flooded the interior of their home and caused

substantial damage. 

The plaintiffs filed suit on December 29, 1994, against

Hill, Hill Home Development, and several others.2 The plaintiffs

claimed, first, that Hill had created a temporary continuing

nuisance in the construction of the Fountain Gate I subdivision.

In the second claim, they alleged that Hill and Hill Home

Development had concealed the fact that the plaintiffs’ property is

subject to periodic heavy flooding. 

In the trial court, all defendants moved for summary

judgment; Hill and Hill Home Development based their motion, at

least in part, on the contention that the applicable statute of

limitations and statute of repose barred the plaintiffs’ claims.

The trial court granted summary judgment to each defendant. The

Court of Appeals affirmed the dismissal of all claims except claims

of “fraudulent and negligent concealment” against Hill and nuisance

against both Hill and Hill Home Development. The Court of Appeals

found that those claims were not time-barred, reversed the trial

court’s grant of summary judgment, and remanded those claims for

trial on the merits. 
3The scope of our opinion will be defined by the issues as

described in our order granting permission to appeal. However, we

note that some discrepancies have appeared with respect to which

claim is asserted against which defendant. In the complaint, the

plaintiffs alleged that Hill alone created the nuisance. In

contrast, the Court of Appeals preserved the claim of nuisance

against both Hill and Hill Home Development. 

The plaintiffs also alleged in their complaint that both Hill

and Hill Home Development committed fraudulent concealment. The

Court of Appeals preserved the claim offraudulent concealment

against Hill alone.

4Although our order granting permission to appeal referred to

claims of “fraud and negligent concealment,” a further review of

the record reveals that, with respect to Hill’s knowledge of the

property’s tendency to flood, the plaintiffs’ allegations encompass

only a claim of “fraud in the inducement.” We will therefore

confine our discussion to “fraudulent concealment.” 

4

Hill and Hill Home Development filed an application for

permission to appeal. We granted that application to address the

following two issues: 

(1) Whether the [Court of Appeals]

erred in reversing summary judgment

in favor of Jim Hill and Hill Home

Development concerning allegations

they created a continuing nuisance3;

and

(2) Whether the [Court of Appeals]

erred in reversing summary judgment

in favor of Jim Hill in his personal

capacity concerning allegations of

fraud and negligent concealment.4

Because the decision to grant or deny summary judgment involves

questions of law only, we review that decision de novo, with no

presumption of correctness. Hembree v. State, 925 S.W.2d 513, 515

(Tenn. 1996). 

We first address the claim of fraudulent concealment.

The allegation is that Hill concealed the fact that the property is
5The four-year statute of repose, Tenn. Code Ann. § 28-3-202

(1980), which we will discuss in the context of nuisance, infra,

applies only to claims involving the construction of some kind of

improvement. Thus, it does not apply to the claim that Hill

concealed or otherwise failed to disclose the existence of periodic

heavy flooding. 

5

subject to periodic heavy flooding. Hill contends that no genuine

issue of material fact exists and that he is entitled to judgment

as a matter of law, or, in the alternative, that the three-year

statute of limitations bars these claims.5 On the other hand, the

plaintiffs insist that even if the three-year statute of

limitations applies, the damage occurred in June 1992, well within

three years of filing suit, and that Hill is not entitled to

summary judgment on that basis. Our decision on the dispute of

material fact issue pretermits any consideration of the statute of

limitations for the fraudulent concealment claim. 

In considering the question whether Hill is entitled to

judgment as a matter of law on the issue of fraudulent concealment,

we must bear in mind that this case is here in the context of

summary judgment. Pursuant to Tenn. R. Civ. P. 56.04, summary

judgment is granted to the moving party if the moving party

complies with Rule 56.03 and the record shows that “there is no

genuine issue as to any material fact and that the moving party is

entitled to a judgment as a matter of law.” In determining whether

a genuine issue of material fact exists for purposes of summary

judgment, courts must view the facts in the light most favorable to

the non-moving party and discard all countervailing evidence. If

a court determines that a dispute exists as to any material fact or

any doubt exists as to the conclusions to be drawn from the facts,
6

the motion must be denied. Byrd v. Hall, 847 S.W.2d 208, 210-11

(Tenn. 1993). 

The material facts are generally undisputed. The

plaintiffs bought the residence in December 1988 and, within weeks

of moving in, began noticing a heavy flow of water in their yard

and in the street. Chrisman stated in his deposition that from the

time he and his wife occupied the residence, a heavy runoff on

their property was a “normal thing” after a heavy rain. He also

stated that he became concerned about the runoff and its effect on

property value as early as 1989, and he spoke to Hill about the

problem at that time. Further, in their complaint the plaintiffs

alleged that their heat-air conditioning unit, located on the side

of the house closest to the drainage easement, had been damaged by

water in June 1989. 

 Hill insisted that summary judgment was appropriate

because the plaintiffs presented no evidence to support their

allegations of fraudulent concealment. In support of his motion,

Hill asserted that the plaintiffs were unable to prove an essential

element of their claim. See Alexander v. Memphis Individual

Practice Ass’n, 870 S.W.2d 278, 280 (Tenn. 1993). Mere conclusory

assertions that the non-moving party has no evidence are clearly

insufficient. The movant must affirmatively negate an essential

element of the non-movant’s claim by pointing to uncontradicted

evidence in the record which supports the assertion. Robinson v.

Omer, 952 S.W.2d 423, 426 (Tenn. 1997); Byrd, 847 S.W.2d at 215. 
7

The tort of fraudulent concealment is committed when a

party who has a duty to disclose a known fact or condition fails to

do so, and another party reasonably relies upon the resulting

misrepresentation, thereby suffering injury. Simmons v. Evans, 185

Tenn. 282, 285, 206 S.W.2d 295, 296 (Tenn. 1947); Justice v.

Anderson County, 955 S.W.2d 613, 616 (Tenn. App. 1997). In support

of his motion for summary judgment, Hill asserted that the

plaintiffs could not prove an essential element of the tort--

knowledge. He pointed to his affidavit in the record stating that

he had no knowledge of flooding prior to December 1988. He also

pointed to Chrisman’s deposition in which Chrisman affirmatively

admitted having no proof to support the allegation that Hill had

prior knowledge of flooding. Thus, Hill properly supported his

motion for summary judgment on this ground. 

Once properly supported, the burden shifts to the nonmoving party to “set forth specific facts establishing the

existence of disputed, material facts which must be resolved by the

trier of fact.” Bain v. Wells, 936 S.W.2d 618, 622 (Tenn. 1997).

The plaintiffs can do this by: (1) pointing to evidence in the

record which was overlooked or ignored by the moving party; (2)

rehabilitating challenged evidence; (3) producing additional

evidence; or (4) submitting an affidavit requesting additional time

for discovery. See McCarley v. West Quality Food Serv., 960 S.W.2d

585, 588 (Tenn. 1998); Byrd, 847 S.W.2d at 215 n. 6. 

The plaintiffs filed a response in opposition to Hill’s

summary judgment motion. We have carefully reviewed that response
6The three-year statute of limitations, Tenn. Code Ann. § 28-

3-105, does not bar the nuisance claim, because when a nuisance is

temporary and continuous in nature, the very continuation of the

nuisance is a new offense entitling plaintiffs to recover damages

occurring within the applicable limitations period, even though the

nuisance has existed longer than that limitations period. Kind v.

Johnson City, 63 Tenn. App. 666, 672, 478 S.W.2d 63, 66 (1970).

8

and fail to find anything addressing Hill’s contention that the

plaintiffs cannot prove the essential element of knowledge.

Viewing the facts in the light most favorable to the non-moving

parties and discarding all countervailing evidence, the plaintiffs

have not met their burden in response to Hill’s properly supported

summary judgment motion. Because Hill has demonstrated that the

plaintiffs are unable to prove an essential element of their claim

of fraudulent concealment, we reverse the Court of Appeals’s denial

of summary judgment to Hill on that claim. 

The next issue concerns the claim that Hill and Hill Home

Development created a continuing nuisance in the construction of

the drainage system in Fountain Gate I. The trial court, as

stated, granted summary judgment to Hill and Hill Home Development.

On appeal, the Court of Appeals reversed, finding that the

continuation of the nuisance thrusts the claim well into any

limitations period.

The defendants insist that the four-year statute of

repose, Tenn. Code Ann. § 28-3-202 (1980), bars the nuisance

claim.6 Tennessee Code Annotated § 28-3-202 provides:

All actions to recover damages

for any deficiency in the design,

planning, supervision, observation

of construction, or construction of
7Tennessee Code Annotated § 28-2-203 (1980) will extend the

four-year deadline one additional year from the date of the injury,

if the injury occurred in the fourth year after substantial

completion of the improvement. The damage to the inside of the

plaintiffs’ house did occur in the fourth year, in June 1992.

Thus, they had at most until June 1993 to bring suit, but they

waited until December 1994 to do so. 

9

an improvement to real property, for

injury to property, real or

personal, arising out of any such

deficiency, or for injury to the

person or for wrongful death arising

out of any such deficiency, shall be

brought against any person

performing or furnishing the design,

planning, supervision, observation

of construction, construction of, or

land surveying in connection with,

such an improvement within four (4)

years after substantial completion

of such an improvement.

The statute of repose will bar an action four years after

substantial completion, regardless of when the plaintiff may have

reasonably discovered the injury.7 The discovery rule, utilized to

ascertain when a cause of action has accrued under a statute of

limitations, does not toll the statute of repose. Watts v. Putnam

County, 525 S.W.2d 488, 491 (Tenn. 1975). This point is emphasized

by Tenn. Code Ann. § 28-3-204 (1980), which states that “[n]othing

in this part shall be construed as extending the period, or periods

provided by the laws of Tennessee or by agreement between the

parties for the bringing of any action.” 

Thus, because Fountain Gate I was substantially completed

in December 1988, the defendants assert that the plaintiffs’ suit

was barred four years after that date. On the other hand, the

plaintiffs contend that Tenn. Code Ann. § 28-3-202, which they
10

characterize as an “engineering negligence statute of limitations,”

applies only to claims of negligence. Because nuisance is a strict

liability action in which negligence is irrelevant, they insist

that Tenn. Code Ann. § 28-3-202 is inapplicable. 

The plaintiffs did not file suit until December 1994, six

years after substantial completion. Therefore, if Tenn. Code Ann.

§ 28-3-202 is applicable, it will unquestionably bar their nuisance

claim. The dispositive question, then, is whether § 28-3-202

applies to the nuisance claim. We conclude that it does. 

In answering this question, we first note that the plain

language of the statute is inescapable: all actions to recover

damages, caused by any deficiency in the design or construction of

an improvement, shall be brought within four years of substantial

completion of the improvement. In order to construe the statute as

suggested by the plaintiffs, we would have to find that the term

“deficiency” narrows the statute’s scope to actions based only on

a negligence theory--hardly a natural reading of the statute. When

construing a statute, courts cannot give it a forced or subtle

construction in an effort to limit or extend the import of the

language. Worrall v. Kroger Co., 545 S.W.2d 736, 738 (Tenn. 1977).

Further, the plaintiffs’ interpretation of Tenn. Code

Ann. § 28-3-202 would repudiate legislative intent. In enacting

the statute, the General Assembly intended to insulate contractors,

architects, engineers, and others from liability for defective

construction or design of improvements to realty where the injury
11

happens more than four years after substantial completion of the

improvement. Watts, 525 S.W.2d at 492. These persons are not at

all insulated if plaintiffs are allowed to circumvent the statute

of repose merely by sticking a “nuisance” label on a negligence

claim.

Moreover, Tenn. Code Ann. § 28-3-202 has previously been

construed to bar actions other than negligence actions. In Lonning

v. Jim Walter Homes, Inc., 725 S.W.2d 682 (Tenn. App. 1987), the

Court of Appeals applied § 28-3-202 to bar a suit that included

claims of fraudulent misrepresentation and breach of express

warranty. The Court of Appeals also applied the statute to a suit

that included claims of strict liability, breach of implied and

express warranties, and misrepresentation. Pridemark Custom

Plating, Inc. v. Upjohn, Co., 702 S.W.2d 566 (Tenn. App. 1985)

(finding that the statute of repose did not bar the claim on

different grounds). Like nuisance, these claims do not require

proof of negligence, yet the statute of repose applies with equal

effect to all of them.

Casting a cause of action in terms of nuisance does not

render the four-year statute of repose inapplicable. This is true

because the designation given to a cause of action does not

necessarily or conclusively determine whether Tenn. Code Ann. § 28-

3-202 applies. Rather, we must look to the substantive allegations

of the complaint. In the instant case, the complaint contains a

multitude of allegations with a considerable amount of blending and
12

duplication. However, the pertinent allegations, as we have

distilled them, are as follows: 

13. By the construction of

Fountaingate I subdivision,

Defendant Hill has created and

maintained a temporary continuing

drainage nuisance which has caused

flooding onto Plaintiffs’ property.

Said flooding has inflicted physical

harm to Plaintiffs’ property and

caused and will cause loss of use

and enjoyment of Plaintiffs of their

property. . . . 

. . . 

15. Hill, in his construction of

Fountaingate I subdivision, was

negligent in that measures were not

installed in Fountaingate I

subdivision to prevent the increases

in runoff generated by construction

of Fountaingate I subdivision to not

cause flooding of Plaintiffs’

property. 

. . . 

WHEREAS: Plaintiffs pray that

this Court will rule as follows:

1. That Defendant Hill has

created a temporary continuing

nuisance in the development and

construction of Fountaingate I

subdivision which has damaged

Plaintiffs’ property and interfered

with their use and enjoyment of

their property,

2. That Hill was negligent and

grossly negligent and reckless in

the construction of Fountaingate I

subdivision thereby causing injury

to Plaintiffs’ property and

interfering with their use and

enjoyment of their property, . . . .

Based upon the above-quoted allegations, we have no

difficulty finding that the instant action is an “action[] to
13

recover damages for any deficiency in the design, planning,

supervision, observation of construction, or construction of an

improvement to real property.” Tenn. Code Ann. § 28-3-202. At the

heart of the plaintiffs’ nuisance claim lies the allegation that

the drainage system is deficient. Interestingly, the plaintiffs

have maintained that the facts supporting their nuisance claim also

support a negligence claim. Therefore, the plaintiffs’ nuisance

claim is barred by the four-year statute of repose. 

As a final matter, we find that the “fraud exception” to

the four-year statute of repose, Tenn. Code Ann. § 28-3-205 (1980),

does not save the plaintiffs’ nuisance claim. Section 28-3-205 can

prevent § 28-3-202 from applying to a cause of action, if the

defendant is “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 if the defendant “shall wrongfully conceal any

such cause of action.” 

Although Hill may not have disclosed the fact that the

property is subject to periodic heavy flooding, the plaintiffs do

not, and cannot, argue that Hill concealed the cause of action for

nuisance. As a matter of fact, this alleged nuisance was apparent,

and the plaintiffs were aware of it within weeks of purchasing the

property. Further, in order to trigger Tenn. Code Ann. § 28-3-205

under the theory of fraud, the plaintiffs must allege fraud in

connection with the design or construction of an improvement.

However, the plaintiffs have not alleged fraud in connection with
14

the drainage system; rather, their allegations of fraud concern

whether the defendant withheld information about the property’s

tendency to flood. Consequently, Tenn. Code Ann. § 28-3-205 does

not prevent application of the statute of repose to the nuisance

claim. It is, therefore, untimely. 

In sum, we hold that under the circumstances of this

case, summary judgment is appropriate for the claim of fraudulent

concealment against Hill, because Hill demonstrated that the

plaintiffs will be unable to prove the essential element of

knowledge. We hold also that summary judgment is appropriate for

the nuisance claim against Hill and Hill Home Development, because

as a matter of law the four-year statute of repose, Tenn. Code Ann.

§ 28-3-202, bars that claim. 

Accordingly, the judgment of the Court of Appeals is

reversed. 

______________________________

ADOLPHO A. BIRCH, JR., Justice

CONCUR:

Anderson, C.J.

Drowota, Reid, Holder, JJ.