IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

November 7, 2018 Session

JEFFREY HEATLEY ET AL. v. DAVID G. GAITHER ET AL.

Appeal from the Chancery Court for Putnam County

No. 2014-14 Ronald Thurman, Chancellor

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No. M2018-00461-COA-R3-CV

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Plaintiffs filed suit against the owners of a neighboring property, claiming that

wastewater from the neighbors’ septic system was pooling onto the plaintiffs’ property. 

The defendants moved for summary judgment on two grounds: (1) their use of the septic 

system was authorized by an implied easement from the previous common ownership of 

the two properties; and (2) they did not breach any duty to the plaintiffs because they 

were unaware that the septic tank existed. In response, the plaintiffs argued that, after the 

septic tank’s discovery, the defendants continued to use it even though it was failing. 

The plaintiffs also moved to amend their complaint to add claims for gross negligence, 

nuisance, and continuing trespass. The trial court granted summary judgment for the 

defendants on all claims and denied the motion to amend the complaint. On appeal, we 

affirm the grant of summary judgment on trespass but reverse the grant of summary 

judgment on negligence. In light of our decision on the summary judgment motion, we 

also vacate the denial of the motion to amend the complaint. 

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

in Part; Affirmed in Part; Vacated in Part; and Case Remanded

W. NEAL MCBRAYER, J., delivered the opinion of the court, in which FRANK G.

CLEMENT, JR., P.J., M.S. and ANDY J. BENNETT, J., joined.

G. Kline Preston IV, Nashville, Tennessee, for the appellants, Jeffrey Heatley and the 

Estate of Kathryn Heatley.

Douglas L. Dunn, Knoxville, Tennessee, for the appellees, David G. Gaither, Patricia W. 

Gaither, Gaither’s Inc., and Generations-Gaither’s Inc.

12/19/2018
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OPINION

I.

A.

This is a dispute between adjoining property owners, the Heatleys and the 

Gaithers, over damage allegedly caused by a leaking septic tank. Most of the relevant 

facts are undisputed.1 In 1968, Melvin Malone and his wife, Anna Rose Malone, owned 

the two properties as one parcel. Later, the Malones constructed a house on the property

and installed an underground sewage disposal system that included two septic tanks. 

Almost thirty years later, the Malones subdivided their property. As a result, the 

Malone house was located on what would become the Gaither property and part of the 

house’s septic system was located underneath what would become the Heatley property. 

According to their complaint, Jeffrey and Kathryn Heatley raised and trained 

specialty service dogs. Because the area around the Heatleys’ dog kennel was often 

damp and muddy, they built a new kennel in a different location on their property. But 

the dampness problems persisted. 

After purchasing the neighboring property, David and Patricia Gaither renovated 

the old Malone house for use as a mental health adult supportive residential facility. In 

the fall of 2011, with the approval of the Tennessee Department of Mental Health, Skylar 

House opened for business. 

Jim Campbell, director of operations for Skylar House, supervised the renovations

of the old Malone house. During the process, he obtained drawings of the septic system 

for Skylar House from the Tennessee Department of Environment and Conservation 

(“TDEC”). The drawings, dated 1999 and 2000, showed only one septic tank. Before 

October 30, 2013, neither Mr. Gaither nor Mr. Campbell was aware that Skylar House 

was also connected to a second septic tank on the Heatley property.

In October 2013, the Heatleys hired a contractor to re-grade the area around the 

new kennel. During that process, the contractor uncovered a clay pipe leading to the 

Gaither property. On October 30, Mr. Heatley notified David Gaither about the 

discovery, which prompted Mr. Gaither to investigate. Mr. Campbell discovered that the 

clay pipe led to a septic tank on the Heatley property. He observed water flowing into the 

 

1 Except as otherwise indicated, the facts are taken from the defendants’ statement of undisputed 

material facts. In some instances, the facts are undisputed only for the purposes of ruling on the motion 

for summary judgment. See Tenn. R. Civ. P. 56.03.
3

tank. Based on his observations, he determined that the septic tank on the Heatley 

property was permanently attached to Skylar House and had been for years. 

Mr. Campbell arranged to have the newly discovered tank emptied on November 

4. And he worked closely with TDEC on a plan to disconnect the tank from Skylar 

House. See Tenn. Code Ann. § 68-221-409(a) (2013) (“Any person proposing to 

construct, alter, extend or repair subsurface sewage disposal systems . . . shall secure a 

permit . . . .”). TDEC supervised implementation of the approved plan. As part of the 

plan, the septic line between Skylar House and the tank on the Heatley property was 

severed and sealed on or about February 21, 2014. 

B.

Before the tank was permanently disconnected, the Heatleys2filed suit against the 

Gaithers and two related entities3(collectively, the “Gaithers”) in the Chancery Court for 

Putnam County, Tennessee, for negligence, negligence per se, and nuisance. According 

to the complaint, after the septic tank was emptied, “water rushed into the tank from the 

line leading to the Gaither property.” Because the field lines attached to the tank were 

failing, wastewater from Skylar House allegedly pooled onto the surface of the Heatley 

property. The Heatleys claimed that, although the Gaithers were aware of the problem,

they refused to “assure the Heatleys that the tank would be disconnected and re-pumped 

to stop the discharge of sewage onto the Heatley property.” 

Later, with the permission of the court, the Heatleys filed an amended complaint. 

The Heatleys dropped the nuisance claim against the Gaithers, choosing instead to pursue 

claims for negligence, negligence per se, and trespass. According to the amended 

complaint, the Gaithers breached their duty of care by failing to maintain the septic 

system or to correct a known sewage discharge. And they committed trespass by 

knowingly and intentionally continuing to transfer their sewage onto the Heatley property 

without consent. 

The Gaithers moved for summary judgment. Two of the theories asserted are 

relevant to this appeal. First, the Gaithers argued an implied easement arose from the 

previous common ownership of the properties that allowed them to use the septic system

on the Heatley property. Second, they claimed no duty to maintain or repair the portions 

of the septic system on the Heatley property prior to the system’s discovery on October 

30, 2013. 

 

2 Mrs. Heatley died during the pendency of this litigation, and her estate was substituted as 

plaintiff. 

3 David Gaither was the chairman/CEO of two closely-held companies, Gaither’s Inc. and 

Generations-Gaither’s Inc. In March 2013, Gaither’s Inc. took over operations of Skylar House. 
4

Although not expressed in their motion, the Gaithers also argued that they did not 

breach any duty of care to the Heatleys after October 30 because they promptly removed 

the accumulated waste in the tank and stopped using it. Mr. Campbell stated in his 

affidavit accompanying the motion for summary judgment:

Shortly after November 4, 2013, [the date the tank was emptied,] when it 

appeared that Unknown Tank was attached to Skylar House, my 

department determined which Skylar House facilities were served by that 

line and those facilities were closed and not used by residents or employees 

until the TDEC approved design was installed. To my knowledge, that 

stopped the flow of water to Unknown Tank. The remaining bathrooms on

the Known Tank of Skylar House served the residents and staff of Skylar 

House. 

The Heatleys did not dispute the evidence of an implied easement or that the 

Gaithers were unaware of the tank’s existence before October 30, 2013.4 But they 

maintained that the Gaithers breached their duty of care by continuing to use the septic 

system on the Heatley property. In an unsworn declaration, Mr. Heatley claimed, based

on his personal observations, that the Gaithers “continued to use the septic tank for a 

period of time after they initially emptied it and it now has 1,000 gallons of . . . waste in it 

which is leaking out every time it rains.”5 

At the same time, the Heatleys moved to amend their complaint. Based on 

substantially the same facts, the proposed second amended complaint added claims for 

gross negligence, nuisance, and continuing trespass. 

C.

The chancery court granted summary judgment to the Gaithers on all claims and 

denied the Heatleys’ motion to amend the complaint. The court determined that the 

septic tank was lawfully on the Heatley property, having been installed when the two 

properties were under common ownership. And the court concluded that the Gaithers

had no duty to maintain or repair the unknown septic tank before it was discovered.

The court also found that it was undisputed that, once they learned about the 

second tank, the Gaithers promptly emptied it, stopped using the affected facilities, and 

 

4 The Heatleys conceded that the Gaithers were entitled to summary judgment on the negligence 

per se claim.

5 The Gaithers objected to Mr. Heatley’s declaration, arguing, among other things, that Mr. 

Heatley had no factual basis for his claim of continued use. 
5

permanently severed the septic line. The court rejected Mr. Heatley’s claim that the 

Gaithers refilled the tank after it was pumped, stating “there is no proof in the record to 

support [Mr. Heatley’s] claim that the tank was refilled after that because the undisputed 

proof reflects that the line to the tank was severed and sealed.” Based on the undisputed 

proof that the connection had been permanently severed, the court concluded that the 

Gaithers were entitled to a judgment as a matter of law on both trespass and negligence.

II.

A.

Summary judgment may be granted only “if the pleadings, depositions, answers to 

interrogatories, and admissions on file, together with the affidavits, if any, show 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.” Tenn. R. Civ. P. 56.04. The party moving for summary 

judgment has “the burden of persuading the court that no genuine and material factual 

issues exist and that it is, therefore, entitled to judgment as a matter of law.” Byrd v. 

Hall, 847 S.W.2d 208, 211 (Tenn. 1993). If the moving party satisfies its burden, “the 

nonmoving party must then demonstrate, by affidavits or discovery materials, that there is 

a genuine, material fact dispute to warrant a trial.” Id.

In this case, the party moving for summary judgment does not bear the burden of 

proof at trial. Consequently, “the moving party may satisfy its burden of production 

either (1) by affirmatively negating an essential element of the nonmoving party’s claim 

or (2) by demonstrating that the nonmoving party’s evidence at the summary judgment 

stage is insufficient to establish the nonmoving party’s claim or defense.” Rye v. 

Women’s Care Ctr. of Memphis, MPLLC, 477 S.W.3d 235, 264 (Tenn. 2015), cert. 

denied, 136 S. Ct. 2452 (2016). Satisfying this burden requires more than a “conclusory 

assertion that summary judgment is appropriate,” rather the movant must set forth 

specific material facts as to which the movant contends there is no dispute. Id.

If a motion for summary judgment is properly supported, the nonmoving party 

must then come forward with something more than the allegations or denials of its 

pleadings. Id. at 265. The nonmoving party must “by affidavits or one of the other 

means provided in Tennessee Rule 56, ‘set forth specific facts’ at the summary judgment 

stage ‘showing that there is a genuine issue for trial.’” Id. (quoting Tenn. R. Civ. P. 

56.06).

A trial court’s decision on a motion for summary judgment enjoys no presumption 

of correctness on appeal. Martin v. Norfolk S. Ry. Co., 271 S.W.3d 76, 84 (Tenn. 2008); 

Blair v. W. Town Mall, 130 S.W.3d 761, 763 (Tenn. 2004). We review the summary 

judgment decision as a question of law. Martin, 271 S.W.3d at 84; Blair, 130 S.W.3d at 

763. Accordingly, we must review the record de novo and make a fresh determination of 
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whether the requirements of Rule 56 of the Tennessee Rules of Civil Procedure have 

been met. Eadie v. Complete Co., 142 S.W.3d 288, 291 (Tenn. 2004); Blair, 130 S.W.3d 

at 763.

B.

1. Negligence

A negligence claim requires proof of five elements: “(1) a duty of care owed by 

defendant to plaintiff; (2) conduct below the applicable standard of care that amounts to a 

breach of that duty; (3) an injury or loss; (4) cause in fact; and (5) proximate, or legal, 

cause.” McCall v. Wilder, 913 S.W.2d 150, 153 (Tenn. 1995). On appeal, the Heatleys 

do not challenge the trial court’s ruling that the Gaithers had no duty to repair or maintain 

the septic system on the Heatley property before October 30, 2013. But they argue that 

after October 30, the Gaithers had a duty to “use [the Heatley tank] safely, maintain it, 

and to protect the Heatleys’ property from . . . harm.” 

Based on its review of the evidence on summary judgment, the trial court 

concluded that the Heatleys could not establish causation because any wastewater on the 

Heatley property could not have originated from Skylar House. Upon learning about the 

tank on the Heatley property, the Gaithers removed the accumulated waste and 

affirmatively stopped the flow of sewage. The Heatleys point to Mr. Heatley’s unsworn 

declaration as proof that the Gaithers continued to use the septic system after it was 

emptied. But we need not reach the issue of the sufficiency of the non-moving party’s

opposing evidence because we conclude that the moving party failed to affirmatively 

negate causation. See Helyukh v. Buddy Head Livestock & Trucking, Inc., No. W2015-

01354-COA-R3-CV, 2017 WL 1483303, at *5 (Tenn. Ct. App. Apr. 24, 2017), perm.

app. denied, (Tenn. Aug. 21, 2017).

The evidence on summary judgment shows that, when the Heatley tank was 

discovered, sewage was actively flowing from Skylar House to the Heatley property. 

Mr. Campbell arranged to have any accumulated waste in the Heatley tank removed on 

November 4, 2013. And it is undisputed that the line was permanently disconnected on 

or around February 21, 2014. The trial court found that the Gaither defendants also 

stopped using the affected facilities during this time period. But Mr. Campbell’s affidavit 

indicates that his department did not close the affected facilities until shortly after

November 4. A reasonable juror could find that sewage from Skylar House continued to 

flow onto the Heatley property for at least a short period after the tank was emptied.

 

Viewing the evidence in the light most favorable to the non-moving party, we 

cannot say that a reasonable person could reach only one conclusion. Staples v. CBL & 

Assocs., Inc., 15 S.W.3d 83, 89 (Tenn. 2000). Because the Gaithers did not affirmatively 

negate an essential element of the negligence claim, the trial court erred in granting 
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summary judgment on negligence. So we reverse that portion of the trial court’s 

decision.

2. Trespass

But we affirm the trial court’s grant of summary judgment on the Heatleys’ 

trespass claim. Trespass protects a landowner’s right to exclusive possession. Morrison 

v. Smith, 757 S.W.2d 678, 681 (Tenn. Ct. App. 1988). Any unauthorized entry upon the 

property of another is trespass. Id.; Rector v. Halliburton, No. M1999-02802-COA-R3-

CV, 2003 WL 535924, at *6 (Tenn. Ct. App. Feb. 26, 2003). But an easement holder is 

authorized to enter and use another’s property for a specific purpose. Hall v. Pippin, 984

S.W.2d 617, 620 (Tenn. Ct. App. 1998). The right of the easement holder to use the 

easement outweighs the landowner’s right to exclusive possession. Cox v. E. Tenn. Nat. 

Gas Co., 136 S.W.3d 626, 627-28 (Tenn. Ct. App. 2003). 

It is undisputed that an easement to use the septic system arose by implication 

from the previous common ownership. See Johnson v. Headrick, 237 S.W.2d 567, 569-

70 (Tenn. Ct. App. 1948) (describing the essential elements to create an easement by 

implication from common ownership). The Gaither property, the dominant tenement, 

benefitted from using the septic system on the Heatley property, the servient tenement. 

See Pevear v. Hunt, 924 S.W.2d 114, 116 (Tenn. Ct. App. 1996) (explaining the 

relationships in an easement appurtenant). This was an easement appurtenant; it ran with 

the land. See Newman v. Woodard, 288 S.W.3d 862, 865 (Tenn. Ct. App. 2008). The 

easement bound the Heatleys even though they purchased their property without 

knowledge of the easement. See Barrett v. Hill, No. 01A01-9806-CV-00295, 1999 WL 

802642, at *4-5 (Tenn. Ct. App. Oct. 7, 1999) (concluding that easement for use of sewer 

line was binding on subsequent purchaser of servient tenement without knowledge). 

Even if the Gaithers continued to use the septic system after October 30, their use, 

as a matter of law, does not constitute trespass. See Rector, 2003 WL 535924, at *6 

(concluding that plaintiff failed to prove trespass because defendant’s use of his property 

was “pursuant to a legally-recognized property interest”); see also RESTATEMENT 

(SECOND) OF TORTS § 158 cmt. e (AM. LAW INST. 1965) (“Conduct which would 

otherwise constitute a trespass is not a trespass if it is privileged.”). An easement holder 

only becomes a trespasser when the holder’s use of the servient tenement is inconsistent 

with the original purpose of the easement. See Adams v. Winnett, 156 S.W.2d 353, 357 

(Tenn. Ct. App. 1941). The easement holder cannot unilaterally change or expand the 

easement such that the burden on the servient tenement is materially increased or a new 

or additional burden is imposed. Id.

Here, the original purpose of the easement was to dispose of sewage from the 

Malone house. The Heatleys do not allege that the use of the easement changed. Rather, 

they contend that otherwise privileged conduct became trespass after the septic tank or 
8

the field lines on their property started leaking.6 While continued use of the septic system 

under these facts could be negligence, it is not trespass. See Rector, 2003 WL 535924, at 

*6; cf. Humphries v. Minbiole, No. M2011-00008-COA-R3-CV, 2012 WL 5466085, at 

*5 (Tenn. Ct. App. Nov. 8, 2012) (concluding that installation of private water line was 

inconsistent with easement for “highway purposes”); Burchfiel v. Gatlinburg Airport 

Auth., No. E2005-02023-COA-R3-CV, 2006 WL 3421282, at *4 (Tenn. Ct. App. Nov. 

28, 2006) (concluding that construction of a sign advertising a museum was inconsistent 

with easement specifically granted for ingress and egress); McCammon v. Meredity, 830 

S.W.2d 577, 580 (Tenn. Ct. App. 1991) (“The dominant owner himself becomes a 

trespasser if he uses the easement to access property other than the dominant estate.”). 

We conclude that the Heatleys cannot establish a claim for trespass under the 

undisputed facts. The Gaithers had an enforceable right to use the septic tank on the 

Heatley property both before and after October 30, 2013. 

C.

The Heatleys also appeal the trial court’s denial of their motion to amend the 

complaint. We will not reverse a trial court’s denial of a motion to amend the pleadings 

absent an abuse of discretion. Pratcher v. Methodist Healthcare Memphis Hosps., 407 

S.W.3d 727, 741 (Tenn. 2013). An abuse of discretion occurs when a court “causes an 

injustice to the party challenging the decision by (1) applying an incorrect legal standard, 

(2) reaching an illogical or unreasonable decision, or (3) basing its decision on a clearly 

erroneous assessment of the evidence.” Lee Med., Inc. v. Beecher, 312 S.W.3d 515, 524 

(Tenn. 2010).

After a responsive pleading has been filed, a plaintiff cannot amend the complaint 

without the written consent of the defendant or permission from the court. See Tenn. R. 

Civ. P. 15.01. Permission to amend “shall be freely given when justice so requires.” Id. 

But court approval is not automatic. Our courts will not grant a motion to amend without 

considering a variety of factors, including “[u]ndue delay in filing; lack of notice to the 

opposing party; bad faith by the moving party, repeated failure to cure deficiencies by 

previous amendments, undue prejudice to the opposing party, and futility of amendment.” 

Cumulus Broad., Inc. v. Shim, 226 S.W.3d 366, 374 (Tenn. 2007) (alteration in original)

(quoting Merriman v. Smith, 599 S.W.2d 548, 559 (Tenn. Ct. App. 1979)).

 

6 We are unpersuaded by the Heatleys’ argument that the wastewater leaking out of the tank is 

actionable as water trespass. Typically, water trespass cases involve some action by the defendant to alter 

the natural flow of surface water to the detriment of the plaintiff’s property. See Ray v. Neff, No. M2016-

02217-COA-R3-CV, 2018 WL 3493158, at *1 (Tenn. Ct. App. July 20, 2018) (describing factual basis of 

water trespass suit). None of the cases cited by the Heatleys in support of this argument involve an 

easement. And, as discussed above, the Gaithers had a legal right to use the septic system. 
9

All of the claims in the proposed second amended complaint were premised on the 

Gaithers’ continued use of the septic system. The trial court determined that the 

proposed amendment was futile because it was undisputed that the Gaithers stopped 

using the system. In light of our conclusion that a reasonable juror could determine that 

the Gaithers continued to use the system for a short period after the tank was emptied, we 

also vacate the court’s denial of the motion to amend. On remand, the court should 

reconsider the Heatleys’ motion to amend in light of the relevant factors.

III.

Because the Gaithers had an enforceable right to use the septic system on the 

Heatley property, their alleged continued use after October 30, 2013, did not constitute 

trespass. So we affirm the trial court’s grant of summary judgment on trespass. But we 

reverse the court’s grant of summary judgment on negligence because the Gaithers failed 

to affirmatively negate an essential element of the negligence claim. Based on our partial 

reversal of the summary judgment decision, we also vacate the court’s denial of the 

motion to amend the complaint. This matter is remanded for further proceedings 

consistent with this opinion.

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W. NEAL MCBRAYER, JUDGE