IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

February 20, 2008 Session

DEBORAH JENKINS as Personal Representative of THE ESTATE OF

MALCOM WILLIAMS, JR. and in her individual capacity; MALCOM

WILLIAMS, SR., as Parent and Next Friend of MALCOM WILLIAMS, JR.

and in his individual capacity; MARIA AKPOTU as Personal Representative

of THE ESTATE OF EDGAR AKPOTU, and in her individual capacity;

CAROL AND JAMES OVERZET, Individually and as Parents and Next

Friend of JACOB OVERZET, a Minor

 v. 

SOUTHLAND CAPITAL CORPORATION, SOUTHLAND EQUITY

CORPORATION, TERRY LYNCH and BRADFORD FARMS LLC

Appeal from the Circuit Court for Shelby County

No. CT-000369-03 Jerry Stokes, Judge

No. W2007-01180-COA-R3-CV - Filed September 23, 2008

This is a consolidated wrongful death and personal injury case. In May 2002, three young

boys walking beside the road were struck by a drunken driver in a residential subdivision. Two were

killed, the third severely injured. The plaintiffs sued the developers of the subdivision, arguing that

the absence of sidewalks in the area where the boys were walking was a cause of the accident. The

trial court granted summary judgment in favor of the developers on grounds that the plaintiffs’

lawsuit was time-barred under the four-year statute of repose for improvements to real property,

T.C.A. § 28-3-202. We agree with the trial court that the improvements to the real property on

which the accident occurred were substantially completed more than four years prior to the filing of

the lawsuits under the statutory definition at T.C.A. § 28-3-201(2), and therefore affirm.

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

HOLLY M. KIRBY, J., delivered the opinion of the Court, in which, ALAN E. HIGHERS, P.J., W.S.,

joined; W. FRANK CRAWFORD, J., did not participate.

Scott A. Frick, Memphis, TN, and Thomas J. Cullen, Jr., Baltimore, MD, for the Appellants

Pam Warnock Green and Nicholas E. Bragorgos, Memphis, TN, for the Appellees
Martin Tapper is the owner of the 1996 Ford Taurus that was driven by Christina Morgan. By Consent 1

Order of April 27, 2007, the Plaintiffs’ claims against Martin Tapper and Christina Morgan were dismissed. Neither

Mr. Tapper, nor Ms. Morgan is a party to this appeal.

W. H. Porter & Company, Inc. prepared the site plans for the subdivision. By Order of October 4, 2004, 2

summary judgment was granted in favor of W.H. Porter & Company. It is not a party to the this appeal.

Southland Capital Corporation is the contractor and building permit owner of the 4028 and 4038 Long

3

Creek Road property, the lots that were the site of the accident.

Southland Equity Corporation is the owner and developer of the 4028 and 4038 Long Creek Road 4

property, the lots that were the site of the accident.

Terry Lynch and Bradford Farms, LLC are the developers of this subdivision. They became party- 5

defendants to this suit when the case against them was consolidated with the suit against the other defendants. See

infra.

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OPINION

This case arises out of a terrible tragedy. On Wednesday, May 21, 2002, three twelve-yearold boys, Malcom Williams, Jr., Edgar Akpotu, and Jake Overzet, left school to walk home. The

route they walked took them northbound along Long Creek Road, a two-lane roadway in Shelby

County, Tennessee, located in the Stansall Crossing, Bradford Farms Public Development, a

subdivision of homes. For most of the roadway, there was a sidewalk on which the boys could walk.

However, for a segment of the roadway covering a length of several lots, there was a curb but no

sidewalk. On that segment, the boys walked on the grass immediately adjacent to the road.

At about the same time that the boys were leaving school, Christina Morgan was behind the

wheel of a 1996 Ford Taurus, intoxicated. At approximately 2:20 p.m., she drove northbound on

Long Creek Road, where the three twelve-year-old boys were walking. As the boys were walking

in the grass on the segment of the road with no sidewalk, Morgan’s vehicle suddenly jumped the

curb. Morgan’s carstruck all three boys. As a result of the collision, Malcom Williams, Jr. died that

evening, and Edgar Akpotu died three days later. Jake Overzet survived but suffered grievous

injuries.

On January 22, 2003, a wrongful death lawsuit was filed by Deborah Jenkins, the mother of

Malcom Williams, Jr., as Personal Representative of the Estate of Malcom Williams, Jr. and in her

individual capacity, and by Malcom Williams, Sr., as Parent and Next Friend of Malcom Williams,

Jr. and in his individual capacity, as well as Maria Akpotu, the mother of Edgar Akpotu, as Personal

Representative of the Estate of Edgar Akpotu and in her individual capacity. The lawsuit was filed

in the Shelby County Circuit Court against Defendants Christina Morgan and Martin Tapper, and 1

W.H. Porter & Company. and against Defendant/Appellees Southland Capital Corporation and 2 3

Southland Equity Corporation. Defendant/Appellees Terry Lynch and Bradford Farms, L.L.C. 4 5

were added as party defendants at some point, although the appellate record does not indicate when
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these parties were added. All of these Defendants shall be referred to collectively as the

“Developers.” 

Shortly after the wrongful death complaint was filed, on February 6, 2003, Carol and James

Overzet, the parents of Jake Overzet, filed another lawsuit against the Developers, seeking damages

on behalf of their injured son. By order of December 9, 2003, the Overzets’ case was consolidated

with the wrongful death lawsuit. Both of the consolidated cases allege defects in the design,

construction, and planning of the two juxtaposed lots that were the site of the accident, Lots 127 and

128 of the Bradford Farms Subdivision, having the respective addresses of 4028 and 4038 Long

Creek Road, Shelby County, Tennessee. The Plaintiffs assert that the Developers were negligent in

the following ways:

1. Failing to timely install sidewalks along 4028 and 4038 Long

Creek Road;

2. Failing to take appropriate precautions to ensure that Long Creek

Road was safe for pedestrians;

3. Failing to properly comply with local zoning ordinances;

4. Failing to properly construct the residences at 4028 and 4038 Long

Creek Road in accordance with safety codes and standards;

5. Failure to complywith Shelby County ordinances and construction

permits regarding 4028 and 4038 Long Creek Road;

6. Failing to exercise due care . . . .

The Developers filed answers, denying liability and asserting as an affirmative defense the applicable

statute of repose.

On August 20, 2004, the Developers filed a motion for summary judgment. The summary

judgment motion asserted that the Plaintiffs’ claims were time-barred under Tennessee Code

Annotated § 28-3-202, the statute of repose applicable to actions to recover damages arising out of

improvements to real property. The statute provides:

Limitation of actions. – All actions to recover damages for any deficiency

in the design, planning, supervision, observation of construction, or construction of

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.

Tenn. Code Ann. § 28-3-202 (2000). Pursuant to the statute, the Developers asserted that the

Plaintiffs’ lawsuits, filed less than a year after the accident, were time-barred because theywere filed
The order granting summary judgment in favor of the Developers was issued by Circuit Court Judge

6

George Brown, who retired from the bench soon thereafter.

The order denying the motion to alter or amend was issued by Judge Brown’s successor, Circuit Court 7

Judge Jerry Stokes.

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more than four years after “substantial completion” of the improvements on the lots that were the

site of the accident.

Relying on affidavits and documents made exhibits in support of the summary judgment

motion, the Developers asserted that the lots in question, Lots 127 and 128, were “substantially

completed” either when the property passed the final inspection by the Memphis and Shelby County

Construction Code Enforcement Office, or when the lots were transferred to individual homeowners.

As to Lot 127, 4028 Long Creek Road, the final inspection occurred on March 31, 1995, and

ownership was transferred to the individual homeowner on October 11, 1995. As to Lot 128, 4038

Long Creek Road, the final inspection occurred on April 3, 1995, and title was transferred to the

individual homeowners on March 2, 1995. Using either date, the Developers argued, the Plaintiffs’

2003 lawsuits were beyond the four-year statute of repose and were therefore time-barred.

In the alternative, the Developers asserted that the drunken driver, Christina Morgan, was the

legal cause of the Plaintiffs’ injuries, and the Developers’ failure to install a sidewalk on the lots was

not a proximate cause of the injuries.

The Plaintiffs opposed the motion for summary judgment, asserting that, had a sidewalk been

installed all along Long Creek Road, the accident would not have occurred. They contended that

there was a genuine issue of material fact on the issue of “substantial completion” within the

meaning of the statute of repose. Tennessee Code Annotated § 28-3-202. The Plaintiffs maintained

that the operative date was either (1) the date of “substantial completion” of the subdivision as a

whole, not the individual lots, or (2) the date on which the sidewalks at issue were completed, not

the residences on the lots. They asserted that work in the subdivision was still being done in 1999,

and sidewalks on the lots at issue were not installed until after the accident, so the consolidated

lawsuits were not time-barred. 

A hearing was held on the summary judgment motion. On February 11, 2005, the trial court

entered its order granting the Developers’ motion for summary judgment. Without elaborating on 6

its reasoning, the trial court found that “the claims against [the Developers] are barred by the

applicable statute of repose at TCA §28-3-202 as a matter of law” and that no issues of disputed fact

remained.

On June 22, 2005, the Plaintiffs filed a motion to alter or amend the judgment, making

arguments similar to those made in response to the summary judgment motion. The motion to alter

or amend was ultimately denied by order of February 8, 2006. From this order, the Plaintiffs now 7

appeal.
Shelby County Code Section 26.5-52 entitled “Sidewalk Construction in Developing Areas” reads, in 8

relevant part, as follows:

(a) Sidewalks shall be constructed along the public street frontages of all lots in

developing areas that have curbs and gutters installed along the public streets

abutting and within the development, in accordance with the Subdivision

Regulations of Memphis and Shelby County . . . .

(continued...)

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On appeal, the Plaintiffs raise one issue for review, namely, whether the trial court erred in

finding as a matter of law that the “improvement to real property” in the Stansall Crossing, Bradford

Farms Planned Development was “substantially completed” pursuant to Tenn. Code Ann. § 28-3-202

more than four years before the date of the accident.

A motion for summary judgment should be granted when the movant demonstrates that there

are no genuine issues of material fact and that the moving party is entitled to a judgment as a matter

of law. See Tenn. R. Civ. P. 56.04. The moving party for summary judgment bears the burden of

demonstrating that no genuine issue of material fact exists. See Bain v. Wells, 936 S.W.2d 618, 622

(Tenn.1997). On a motion for summary judgment, the court must take the strongest legitimate view

of the evidence in favor of the nonmoving party, allow all reasonable inferences in favor of that

party, and discard all countervailing evidence. See id. In Byrd v. Hall, 847 S.W.2d 208

(Tenn.1993), our Supreme Court stated:

Once it is shown by the moving party that there is no genuine issue

of material fact, the nonmoving party must then demonstrate, by

affidavits or discovery material, that there is a genuine, material fact

dispute to warrant a trial. In this regard, Rule 56.05 provides that the

nonmoving party cannot simply rely upon his pleadings but must set

forth specific facts showing that there is a genuine issue of material

fact for trial.

Id. at 210-11 (citations omitted).

Summary judgment is only appropriate when the facts and the legal conclusions drawn from

the facts reasonably permit only one conclusion. See Carvell v. Bottoms, 900 S.W.2d 23, 26

(Tenn.1995). Because only questions of law are involved, there is no presumption of correctness

regarding a trial court's grant or denial of summary judgment. See Bain, 936 S.W.2d at 622.

Therefore, our review of the trial court's grant of summary judgment is de novo on the record before

this Court. See Warren v. Estate of Kirk, 954 S.W.2d 722, 723 (Tenn.1997).

On appeal, the Plaintiffs make arguments similar to those they made before the trial court.

They contend that the Developersfailed to install sidewalks in direct violation of the Shelby County

Code, which requires builders to install sidewalks on street frontage. The expert retained by the 8
(...continued) 8

(b) It shall be the duty and responsibility of the contractor/builder to whom the

building permit for the lot is issued [here, Southland Capital Corporation] to obtain

a sidewalk permit from the building official and to install the required sidewalk

across the street frontage(s) of the lot . . . . The sidewalk shall be installed by the

contractor/builder, and inspected and accepted by the building official prior to the

final inspection of the structure or structures on the lot abutting on or adjacent to

such sidewalk by the building official and prior to any use or occupancy of the

structure.

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Plaintiffs, they claim, was prepared to opine that, had the sidewalk been timely installed by the

Developers, the boys would not have been walking so close to the road and the accident would not

have occurred.

The Plaintiffs insist that there is a genuine issue of fact as to the date of “substantial

completion” under the statute, and that the phrase “improvement to real property” pertains to the

subdivision as a whole, rather than the individual lots on which the accident occurred. They contend

that the “improvement to real property” could not have been substantially completed until the

sidewalks were installed as required, and this did not take place until after the accident. Completion

of the residences on the lots is not determinative, they argue, in a case where the issue is not the

quality of the construction of the homes. Thus, they maintain, the trial court erred in holding that,

as a matter of law, the “improvement to real property” at issue was substantially completed more

than four years before the lawsuit was filed.

Taking the strongest legitimate view of the evidence in favor of the Plaintiffs, and allowing

all reasonable inferences in the Plaintiffs’ favor, we briefly outline the facts as presumed for

purposes of reviewing the trial court’s ruling on the summary judgment motion. We presume that

the Shelby County Code requires the builder to construct sidewalks along public streets. The final

inspection for Lots 127 and 128 by the Memphis and Shelby County Construction Code Enforcement

occurred in 1995, and the transfer of ownership of both lots from the builders to individual

homeowners occurred in 1995 as well. The Developers continued making improvements to the

subdivision, Stansall Crossing, Bradford Farms Public Development, as late as 1999. The sidewalks

for the lots at issue were installed after the accident occurred on May 21, 2002. The earliest

complaint in the consolidated cases was filed on January 22, 2003.

In view of these facts, we now turn to interpreting the statute of repose, Tennessee Code

Annotated § 28-3-202. At issue is the meaning of the phrase “improvement to real property” and

the term “substantial completion” as used in § 28-3-202. While the statute does not indicate the

scope of “improvement to real property,” the term “substantial completion” is defined as follows:

(2) “Substantial completion” means that degree of completion of a

project, improvement, or a specified area or portion thereof (in

accordance with the contract documents, as modified by any change

orders agreed to by the parties) upon attainment of which the owner
The Watts Court quotes Agus v. Future Chattanooga Developments Corp., 358 F. Supp. 246, 251 (E.D. 9

Tenn. 1973), that the intent of the legislature was “to insulate contractors, architects, engineers and the like from

liability for their defective construction or design of improvements to realty where . . . the injury happens more than

four years after . . . substantial completion . . . . Watts, 525 S.W.2d at 492. The Watts Court commented that the

statute might be “inequitable and undesirable” but nevertheless reflects “the clear legislative intent.” Id. at 443. It

observed that “[t]hese laws have been widely and severely criticized.” Id., n. 5.

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can use the same for the purpose for which it was intended; the date

of substantial completion may be established by written agreement

between the contractor and the owner.

Tenn. Code Ann. § 28-3-201 (2000). We consider the meaning of these terms and phrases in light

of the statute as a whole.

It is well settled that, in interpreting statutes, courts are to “give effect to the legislative intent

without unduly restricting or expanding a statute’s coverage beyond its intended scope.” Owens v.

State, 908 S.W.2d 923, 926 (Tenn.1995). Intent should be determined “from the natural and ordinary

meaning of the statutory language within the context ofthe entire statute without any forced or subtle

construction that would extend or limit the statute’s meaning.” State v. Flemming, 19 S.W.3d 195,

197 (Tenn.2000). Courts must take care not to “apply a particular interpretation to a statute if that

interpretation would yield an absurd result.” State v. Sims, 45 S.W.3d 1, 11 (Tenn.2001).

In Watts v. Putnam County, 525 S.W.2d 488 (Tenn.1975), our Supreme Court considered

the intent of the Tennessee legislature in enacting Tennessee Code Annotated § 28-3-202 (previously

§ 28-314). The Watts Court noted that statutes of repose such as the statute at issue “are entirely

unrelated to the accrual of any cause of action, since they begin to run on the date of substantial

completion as opposed to the date of injury or damage.” Id. at 491. Thus, where the occurrence or

injury giving rise to the claim comes about more than four years after substantial completion, the

claim “is barred. This conclusion is harsh, but is demanded under the statutory scheme.” Id. at 492. 9

Watts did not construe the meaning of “substantial completion” because, in that case, the date of

substantial completion was not in dispute. Id. at 492.

This Court addressed the meaning of the term “substantial completion” in Meyer v. Bryson,

891 S.W.2d 223 (Tenn. Ct. App.1994). In Meyer, the plaintiffs filed a lawsuit to recover damages

stemming from the alleged defective construction of a residence. Id. at 223. The trial court

dismissed the claim as time-barred under Tennessee Code Annotated § 28-3-202, holding that the

certificate of occupancy issued by the county established as a matter of law the date of “substantial

completion.” The individual who owned the house on the date the certificate of occupancy was

issued testified that the house was substantially complete on that date. The Meyer Court stated: “[I]t

is probably an erroneous conclusion that issuance of a certificate of occupancy by a governmental

agency establishes substantial completion of a construction project as a matter of law.” Id. at 225.

Instead, the Court relied on the unrefuted testimony of the homeowner that the house was

substantially complete on the date the certificate of occupancy was issued. Id.
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The plaintiffs argued that the house had never been “substantially completed” because the

defects of which they complained had never been repaired. Id. The Meyer Court rejected this

argument, commenting that if it were to accept the argument espoused by the plaintiffs, it would

defeat the purpose of Tennessee Code Annotated § 28-3-202, see supra. It held that “substantial

completion” occurs when the owner can use the building for its intended use, that of a home, even

if some defects remain. Id. at 225.

We now apply this law to the facts in the case at bar. Here, it is undisputed that the lots at

issue were residential lots in a subdivision of homes. Analogous to the argument of the plaintiffs

in Meyer, the Plaintiffs in this case argue that the “improvement to real property” at issue was

installation of the sidewalks, which had not been done as of the date of the accident and thus was not

“substantially completed” until after the accident. In the alternative, the Plaintiffs interpret the

statute expansively, arguing that there is no “substantial completion” until in essence the entire

subdivision is complete, including the required sidewalks throughout.

We must reject both arguments. To focus only on the defect at issue – here, the absence of

sidewalks on the two lots – is too circumscribed an interpretation of the statute. Concomitantly,

defining the “real property” at issue to mean the entire subdivision is overly broad. Both

interpretations defeat the essential purpose of Section 28-3-202, that is, to limit claims to those

arising within four years after substantial completion of the improvements to the real property at

issue.

Here, the real property at issue is clearly the two residential lots, Lots 127 and 128. Under

the statutory definition of “substantial completion” and the definition set forth in Meyer, substantial

completion would occur under the facts of this case when the lot at issue, including but not limited

to the house, can be used for its intended purpose as a residence. As noted in Meyer, this may or

may not coincide with the approval of a governmental entity such as the Memphis and Shelby

County Construction Code Enforcement Office; passing such a final inspection is indicative of

substantial completion but not necessarily determinative. Under the facts of this case, however, it

is undisputed that the homes were transferred to individual homeowners the same year, 1995, and

had been occupied as residences thereafter. The Plaintiffs put forth no evidence, save the absence

of sidewalks, indicating that the lots had not been used for their intended purpose, as residences,

since the transfer to individual homeowners.

Here, the defect focused on by the Plaintiffs is the absence of sidewalks on these lots.

However important that defect may be in the context of the Plaintiffs’ claims, it is not a defect that

would prevent the lots from being used for their intended purpose, as residences. Thus, we must

hold that the trial court did not err in finding as a matter of law that the “improvement to real

property” was substantially completed more than four years prior to the filing of the Plaintiffs’

consolidated lawsuits.
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The decision of the trial court is affirmed. Costs of this appeal are assessed against the

Appellants, Deborah Jenkins, Malcom Williams, Sr., Maria Akpotu, Carol Overzet, James Overzet,

and their respective sureties, for which execution may issue if necessary.

__________________________________________

HOLLY M. KIRBY, JUDGE