# FILED
October 10, 19 97 Cecil W. Crowson Ap pellate Cou rt Clerk CHARLES W. BERNARD and wife, ) KAREN BERNARD, ) ) Williamson Chancery Plaintiffs/

Appellants , ) No. 22425 ) VS. ) ) Appeal No. HOUSTON EZE LL CORPOR ATION, THE ) 01A01-9701-CH-00015 CITY OF BR

ENTWOOD, TEN

NESSEE and ) LAND INVESTMENT CORPORATION, ) ) Defendants

/Appellees, ) )

IN THE COURT OF AP PEALS OF

TENNESSEE MIDDLE SECT ION AT NASHV ILLE

APPEAL FROM THE WILLIAMSON COUNTY CHANCERY COURT

AT FRAN KLIN, TEN

NESSEE

HONORABL E CORNELI A A. CLARK, JUDGE

William Kennerly Burg er 301 N. Spring Street, P.O. Box 398 Murfreesboro, TN 37133-0398 ATTORNEY FOR DEFENDANTS/APPEL LANTS David J. White, Jr. WHITE & REASOR 3305 West End Avenue Nashville, TN 37203 ATTORNEY FOR PLAI

NTIFFS/APPEL

LEE, HOUSTON EZ

ELL CORPORATION Van French, BPR #6922 The City of Bre

ntwood 8307 Bridle Place Brentwood, TN 37027 ATTORNEY FOR DEFENDANT/APPEL LEE


### AFFIRMED A ND REMAND ED

HENRY F. TODD PRESIDING

JUDGE, MIDDL

E SECTION

CONCURS: BEN H. CANTRELL , JUDGE WILL IAM B. CAI

N, SPECIAL JUDGE-2-

CHARLES W. BERNARD and wife, ) KAREN BERNARD, ) ) Williamson Chancery Plaintiffs/

Appellants , ) No. 22425 ) VS. ) ) Appeal No. HOUSTON EZE LL CORPOR ATION, THE ) 01A01-9701-CH-00015 CITY OF BR

ENTWOOD, TEN

NESSEE and ) LAND INVESTMENT CORPORATION, ) ) Defendants

/Appellees, ) )



### O P I N I O N

This suit arose ou t of alleg ed defe cts in the pla nning of a subdivis ion lot and

defect s in the lot on which a house was built and sold to plaintiffs.

The suit against The City of B rentwoodwas dismissed upon a motion to dismiss or for summary judgment. The suit against Houston Ezell Corporation, the developer of the subdivision, was dismissed by the Trial Judge a fter a hearing upon the

merits. The manner of disposition of

the remaining defendant, Land Investment Corporation, will be detailed her eafter.

PLEADINGS

The comp laint alle ged in p art: 2. Th e Defendant HOUSTO N EZELL CORPORATION is a corporation chartered under the laws of the State of Tennessee an d d oi ng bu si ne ss wi th in Wi ll ia ms on Co un ty, Tennessee. De fendant HOUSTON EZEL L CORPOR ATIO N is the developer of the above-describe d Brentmeade Estates Su bdivision, which inc ludes L ot No. 156, of Sectio n II , Revision Number 1, of that subdivision. Plai ntiff s alle ge and aver that the said HOUSTON EZEL L COR POR ATION, directl y or through their agents, prepa red information require d by both state and local development statutes a nd ordina nces, necessary for the submission and ap proval of the abovedescribed Brentmeade Estates Subdivision by t he local planning authority, specifica lly the Bre

ntwood Plan n ing Commission.-3- 5. Included

am on g the mandatory

subdivision regulations applica

ble to the above-described tract of land is § 506 of the Brentwood Subd ivis ion regulations, which providesas follow s: “Suitabili ty of the land . The Planning Commission sh all not approve the subdi visi on of land if, from a

dequate investigations conducted by all public agenc ies conc erned, i

t has been de

termined that in the

best interest of the public the site is not suitab le for platting and development purposes of the kind proposed. Land subject to flooding and land deemed to be topogra phically unsuitable shall notbe platted for residential oc cu pa nc y, or for any

other uses which may

incre ase flood hazard, endanger health, life or prope rt y, or agg ravate erosion. Su ch land within the plat shall be s et aside

for su ch uses a s shallnot be endangered by periodic or occasional inundation or shall n ot produc e satisfa ctory living c onditions.

- - - - 5. Further

§602.3 of the Brentwood Subdivision Regulations outlines minimal requirements fo r pro per lot drainag e within the subdivis ion propos ed for de velopmen t.

- - - - 7. The Defendant, LAND INVESTMENT CORPORATION, is th e g ra nt or of th e r ea l e st at e p ro pe rt y. The real es tatewas constructed by contractor T. J. Neumann and Assoc iates , alth ough the true gr antor in in

terest is Defendant LAND

INVESTMENT CORPORATI ON.

- - - - 9. Plaintiffs CHARLES W. BERNAR D and wi fe , KAREN BERNARD allege and aver tha t , commencing almos timmediately upon their occupa ncy of the pr

opert y , they bec ame aware of

an unusual water accumulation problem beneath the residence constructed upon L ot 156, manifested periodic ally

by t he accumulation of as much as two to three feet of water beneath the house, often inundating the central heat and air c onduit s and soaking the floor joists and other areas beneath the residence. Plai ntiffs a llege a nd aver t hat, upon complaining o f the pro pensity of the lot t

o freque ntly flood bene ath the r

esidenc e, effo

rts were immediate

ly co mmencedby

the developer HOUSTON EZEL L CORPORATION

an d the grantor, LA

ND INVESTMENT CORPORATION, to correct the probl em. Plai ntiff s alle ge that those cor

rective efforts , althoug

h providin g some temp or ar y, mitigating reli ef, fai led to pro vide a pe rmanent , adequa te remedy. Extensive excavation ar ound and bene ath the residence occurred in 1990 as the Defendants HOUSTON EZE LL CORPORATION and L AND INVESTMENT CORPORATION

understood more dramatic efforts to solve the water accumulation

problems . Those e

xtensive efforts in 1990 provided some abatement to theproblem, although the relief was tempo r ary in nature , and proved ultimately to be un sa ti sf ac to ry.

- - - --4- 12. Plaintiffs allege and aver that they are entitled to th e r em ed y o f rec ision as to the grantor, LAND IN VESTMENT CORPORATION, which is a company related to the parent company , H OUSTO N EZ ELL CORPORATION.

- - - - 14. Plaintiffs allege an d ave r that, due to the statutor y obligation of the CITY OF BRENTWOOD, TENNESSEE to properly re view , i nspect, and approve land proposedfor subdivision dev elo pment, the CITY OF BR ENTWOOD, TENNESSEE is legally r esponsible, bot h upon legal theories of permanent nuisance and tort, due to the improper supervision of the development of Lot 156.

- - - - BA S ED UPON THE F OREGOI NG AL LEGA TION S, PLAINTIFFS SEEK THE FOLLOWING RELI EF: A. A finding by the Court that the a bove described condition constitutes a permanent nuisance, which cannot be abated or minimized by expenditures of additional sums or additional corrective work. B. That, in th e alternative, a mutual mistake of fact or negligent misrepre sentation existed at the time of the saleof the property t o t he Pl ai nt if fs an d t ha t, ac co rd in gl y, Plaintiffs should be granted recis ion of the transaction, together with incidental and consequential damages appropriately

shown. C. A finding that the CITY OF BRENTWOOD, TENNESSEE is jointly

and seve rally liable du e to its failure to follow the requirements which the CITY itself promulgated for proper review of potential drainag e proble

ms in proposed subdivisio n develop ment. D. The joint and several liability for the da mages shown by t

h e Pla intiffs against the Defendant HOUSTON EZE LL CORPORATION, developer of Brentmeade Estate s Subdivision. E. F or

such further and genera

l relief to whi c h Plaintiffs may be entitled, including all incidental an d consequ ential da

mages, attorne

y’ s fees, a nd court c osts. F. A finding

that the c onduct of

th e developer constitutes a violation of the Tennessee Consumer Protection Statute, sp ec if

ic al ly Tennessee Code Annotated , § 47-18-101 et seq, entitling the Plaintiffs to an a ssessment of attorney’ s fees an d, if intentional misconduct is shown, an award of treble damages aga

inst the developer and grantor.

The City moved

to dismiss for failure to state a claim for which relief can be g ranted and subseque ntly moved for

summary judgmen t.-5- The Trial Judge overruled the motion of the City to dismiss and sustained themotion of the City for summa

ry judgmen t.

The def endan t-dev elope r file d an an swer i nclud ing th e foll owing: 7. The Defendant admits that Land I nvestment and Development

Corporation, the predecessor of Houston Eze

ll Corporation, transferred and convey ed the pr operty described in paragraph 1 of the Complaint to T. J. Neumann an d Associat es, Inc. constructed a residence on the property; and that T. J. Ne umann and Associates, Inc. tra nsferred and conveye d the property to the Plaintiffs.

- - - - 1. The Complaint fai ls to state a claim against the Defendant upon which relief can be g ranted. 2. The causes of action alleged in the Com plaint are barred by t he applic able sta

tute of lim

itations. 3. Neither

the Defendant or La

nd In vestment and Development

Corporation, its predecessor, was guilty of any negligence

which proximat el y c aused or contributed to the Plaintiff s’ water problem or any

damages, losses or expenses incurred by

the Plaintiffs.

Plaintiffs moved for partial summary judgment against the seller, wh ich motion was overruled.

The Trial Court entered the following Order :

Upon consideration of the entire record herein, the court concludes that defendant Houston Ezell Corporation’s Motion for Summa

ry Judgment i s not well t

aken an d the same is hereby ove

rruled. Plaintiff i s hereby a warded summary ju dgment on the issue of defendant/developer’s liabi lit y pr ovided said defendant fails to sustain the affirmative defense of bar of the statut e of limita

tions. ALL SO ORDERED

this 14thday of December 1995.

The develope

r moved f or an ord er bifur cating the rema ining iss ue of sta

tute of lim itatio n s from the issue of damages, and for he aring on the issue. The motion was sustained.-6- Al l plea dings and ordersto this point were un der captions cont aining t he namesof all three c aptioned

defenda nts.

The captions of

the succeeding memoran dum and final orde r of the T rial Judg e contain only the name of the defendant

-develo per, omitt ing the other two d

efenda nts.

The Memor

andum re ads as fo llows: This bifurcated case was heard on A ugust 16, 1996 , o n the affirmative defense

of statute of limitati ons and/or

statute of repose. By orde

r entered December 14, 1995, Judge Henr y D. Bell granted summary judgment

as to liability, except for defendant’s right t

o assert the statute of limitations defense. By or d er entered April 23, 1996, the court bifurcate d the remaining issue of damages and set a hearing on the sta tute of limitations issue. On Au gu st 16 , t he co ur t h ea rd th e t es ti mo ny o f the parties and received additional evidence on the sole issue before it. Aft er due co nsideration, the court finds that the statute of limitations/statute of repos e defense has been sustained and the case must be dismissed. The grava men of thiscomplaint

is that both a surface water and subsurface water problem exist on the lot and under the house where plaintiffs’ residence is located . T heir homeb uilder, T. J. Neumann & Associates, Inc. ( “Neumann (sic)), who sold them their lot, has taken bankruptcy and is no longer available for suit. They have sued the original developer of the property under theories of negligenc e, permanent

nuisance , and viola

tio n of the Consumer Protectio n Act. The parties d

o not disput

e that defendant

so ld this propert y to the builder on March 31, 1986. Thebuilder then constructed

a home on t

h e lot. The home

was substa

ntially completedand the pl aintiffsreceiv ed their deed on March 27, 1987. This lawsu

it was not filed unt il December 14, 1993, six and one-half year s later. At issue in the court’s determination are the three-y ear sta tute of limitations for damage to real property (T.C.A. § 28-3-105); the four-ye ar statute of re pose r elated to real property c onstruction (T.C.A. § 28-3-202); and the one-y ear statute of limitations (with a four-yea r statute of repose) for violations of

the Tennessee Consumer Protection Act (T.C.A. § 47-18-11 0). Plaint

iffs’ sui t was not br

ought tim ely unless they can show that the applicable statute(s) was/were tolled for some period of time by the actions of defendant that were fraudulent or intended to conceal the rea l cause of action.-7- The pertine

nt facts a re as fo llows. Defendant H ouston Ezell Corpor at ion (formerly known as Land I nvestment Corporation) pur chased a

large acrea ge in Willi amson Coun

ty for the purpose of subdividing theland into one-acretracts on which single family r

esidences could be constructed. Defendant

developed the lan d in complia nce with a

ll applica ble g ov ernment

al rules a nd regulations. At no time during the development process did any employee, a

gent, or other representative of defendant see or hear about any unusual flow or accumulation of water on the acreag e which eventually comprise d the subdivision known as Brentmeade E states. Defendant ultimately sold L ot 156, the loti n question of this law suit, to Ne uma nn in March 1986. Neumann then beg an constr

uction of a home on t

his lot. During constructi on of the home, a Neumann employee of the builde

r observ ed wate

r seepin g from a

rock on the property. N

e umann’s foreman called defendant for advice because the builder was new to Tennessee and w a s inexperiencedin dealing with subsurface water issues. Ted Sanders, an officer of defendant, w ent to the lot but did not observe any flow

or accumulation of water from or around the rock at that time. Mr. Sander s ma de suggestions to the foremanthat an underground drainag e pipe be installed to the edge of the property

line. Neu mann comp leted this installation. Defendant then agree d to install a pipe from the propert y li ne under t he street to connect to a storm drain on the opposite s i d e of the street. The City of Brentwood inspector approved the installation of the pipe under the road. Defendant

was not directly

involved in the installation of the pi pe on th e p ro pe rt y. Plaintiffs purchased the lot and moved into the resi dence in March 1987. Several months after they took possession, plaintiffs noticed water stand ing in their back ya rd after a heavy rain. They had ne

ver experienced this problem before, but it did not cause th em great concern at the time. Withina month or

two afte r that, a neig h bor called and pointed out water flowing on their property be tween the two houses from an a

rea in the back of their property . Water was not o nly stand ing bu t flow ing. About six months later, in early 1988, plai ntiffs observed that e very time it rained w ater would start pooling in the same

back ya rd area. The accumulation became much larger than before. Mr. Bernard pinpointed six areas flowing from underground

tha t contribu

ted to the pooling. This did create concern. Mr. Bernard then c ontacted defendant for the first tim e. He also contacted his attorney , who came to th e site, persona

lly observ ed the six flowing streams, and made a video. In response

to th at call Doug Sanders, an age nt of defendant an d a cquainta

nce of Mr s. Bern ard, ca me immediate

ly to the prope

rty and view ed the six wa

ter sour ces. Plaintiff requested he lp from defendant to resolve the-8- problem. A few weeks later, in about March 1988, a n electricianworking under plaintiffs’ house advised them about a “serious” standing water problem ther e. Mr. Bernard then wen t under hi s home

for the f irst time. He again called defenda nt, reported the problem, and sought assistance. Defendant

representatives returned to the house, observed the water and building debris left by Ne umann after

construction, and took acti on to pump the water and remove the debris from underneath the house. The positive drain also was cleaned. In the fall

of 19 88, Mr. Bernard again r eported an accu mulation of water under his house. Defendant ag ai n responded

and pumpe d out the w ater. At t hat t ime Ted Sanders also emplo yed Ba r ge Waggoner Sumner & Cannon to investigate. Dan Barg e, II I proposed the installat

ion o f a French drain to int ercept the water coming fr om the back of the lot and divert it around the hous e. T his drain was installed at

no cost to p laintiff

in early 1989. The defendant also emplo yed a subco ntract or to r ework t he eart hen dr ainage ditc h at the rear of the property . Immediately upon completion of these

actions, all parti es hoped that th eyhad corrected the pr

oblem. However, within six to eight months after this work was do ne by de fendant, Mr. Bernard testified that it was “quite evident”that the problems had not been cured. At that time he contacted

an attor ney to give him advice about what his rights were. However, he did not conta ct defenda nt again until early 1993. In 1993 plaintiff

s noticed a musty odor unde

r their house, and identified water accumulating there again. They ag aincontact

ed defe ndant, who employ

ed a hy drologi st t o prepare a report. As a result of the report made by Ogden Environmental and Energy Services (“Ogden”), plaintiffs have now been given a specific opinion about the cause of the water problem, and a specific re comme ndation about what needs to be done to correct it. Plaintiffs claim that the receipt of this re port cons titutes the

creatio n of their

cause of action and starts the running of the statute of limitations. They filed this suit on December 14, 1993. Plaintiffs asserted at trial that the construction of the pipe across thei r pr operty (not done by defendant), and the fa ilure to advise of that construction, constitutes one part of thei r c laim. They do not assert that plaintiffs c reated the underground

springs. They

do contend th at defendant’s superior knowledge about the

flowing water in

1986 ga ve rise to a duty further

to investigate it, and t he failure to take that step gives rise to a cause of ac tion. They appar ently did not allege that any

remedia l work done in 1988 o

r 1989 g ives rise t o a cause of action, but only that that work helped

concea l the ex te nt of

th e p ro bl em . P la in ti ff s r el y he avily on statemen ts m ad e in Prescott

v. Adams

, 627 S.W.2d 134 (Tenn. App. 1981 ). Howev er, th at case is d istinguis hable because it arose out of

a court’s grant o f summary judgmen t.-9- In that case the trial court found that there were issues of fact concerning the allegations of fraud and conce alment, and that summ ary judg ment was not approp riate. I n the insta

nt case defendant also did no t prevai l on its ear lier mo tion for su mmary judgmen t. The mat

ter is bef ore the c ourt now , however, after trial on the merits. Th is court has heard more proof than was p rese nted during the motion for summary judgmen t, and is in a po siti on to evalu ate and weigh the proof presented. This court is convi nced th at the cause of action for damages arose, if at all, many years be fore this lawsuit was file d. If there is a per

manent nuisance, it has existed since before plaintiff

s purcha sed their

property, a

nd has manifested itself in sever al way s. If there

is a violation of the Consumer Protection Act, it must be based on some action or omission taken not later

than early 1989. The

fact that plaintiffs did not discover a fraud does not itself toll the statute of limitations

. There must be continued affirmative, fraudulent concealment of the caus e of act

ion by defenda nt. In addition, the

defendant must know that

t he plaintiff ha s a cause

of actio n and must conceal it in s uch a fashion that, even if plaintiff were diligen t, he wou ld not b e able to discover it. Phillips v. Phillips , 526 S.W.2d 439 (Tenn. 1975). It is not the fraud, but its concealment by

the party per

petrating it, un m ixed with fault or negligence on the

part of him who complains, which works this result. Id . At 440. In this case the court is convinced that defendant never affirma tively committed fraudor concealed a cause of action. Each time plaintiffs called a representative of def endant responded. Both parties had thesameamount of information concerning the p r oblems as they deve loped. From 1988 forward, Mr. Bernard was fully aware that there were

at least six springs caus ing subs urface water flow in his back y ard. He was aware tha

t water stood under the house after each rain. Plaintiffs contend that they did not know they had a cause of action until the Og den repor t was made in 1993. However, they

have pre se nted no proof to suggest why they could not have hired a hy drologist earlier. Ultimatel y it is not necessary for

the court to an alyze eachpotentia

l accru al date d

iscussed by t he parti es in this lawsuit. It is sufficient to find that the last work perfor med by defendant on this property and

the las t statements made by defenda nt, occurr ed in ear ly 1989. Within six or eight months af ter that time, plaintiff Charles W. Bernard was aware that that work had not

successfully c ontained the problem and that the probl em contin

ued to exist. This concerned him en ough to cause him to call hi s attorne y a nd to seek adv

ice abou t his rights in th e situation. At this point, if not before, plaintiffs clearly had a ca us e of action, and knew they had a cause of action. Harvey

v. Knox Count

y , 1988 Tenn. App. Lexis 487 (Tenn. App. M.S., August 3, 1988). It was not necessar y that they know all the reasons for the problem or the extent of the problems

. They knew the probl em was worse after a heavy-10- rain fall, but t estified that it did

not rain much between 1989 and 1993. Plain

tiff s did not ma

de any further contact with defendant until early

1993, and

did not file

this lawsu

it until December

14, 1993. Their lawsuit is barred by all applic able statutes of limitation and/or repose. This Memorandum shall be placed of record, but nee d notbe spread upon the minutes of the court. An order of di sm is sa l i s b ei ng en te re d c on te mp or an eo us ly.

The Orde r readsas follow s: In accordance with the Memorandum being entered co nt em po ra ne ou sl y, IT I S H EREB Y ORDERED , ADJUDGED AND D E CREED that plaintiff s’ case agains t defendant Houston Ezell Corporation shall be, and is he re by, dismissed. Costs are taxed to plaintiffs, for which execution ma y is su e i f n ec es sa ry.
The caption of the Notice of Appeal contains the names of a ll three defendants, but the appeal bond is made only to the de veloper.

THE PARTIES AND ISSUES ON APPEAL

The cover, certificate of the Trial Clerk and brief of appellant list the names of all three defenda nts. A brief has been filed in this Court onbehalf of the developer, and a sepa rate brief has been filed on behalf o f th e City. No brief has been filed on behalf of La nd Investment Corporation.

Plaintiff s state the issues on a

ppeal asfollows: 1. Withinthe meaning of Rules 13d and 36 of the Tennessee Rules of Appellate Procedure , does the preponderance

of the evidence support

the trial court’s ruling that no conduct wa s com mitted by the Defenda nt which violated a duty to disclose, within the meaning of the T.C.A. § 28-3-20 5, tolling

the statut e of limita

tions? 2. Did

the Defendant’s cond

uct in perfor

mi ng the correctivework, wh ile not disclosing a full history of the problem, effec t an estoppe l of the statute of limitations defense?-11- 3. Was the trial court co rrect in its determination that the CI TY OF B RE NT WOOD is immun e from c laims arising from the CITY’S fa ilu re to conduct any

final ins pection of the BERNARD residence and there aft e r permitting its sale and occupancy , after failing an earlier inspection?

The deve loper sta tes the iss ues on ap

peal as f ollows: A. Did

Chancello r (sic) Cornelia A. Clark err, after hearing all the proof, by d etermining that t

he statute of lim i tations barred the Plaintiffs’ alleged ca use of action agains t the Def

endants? B. Did

Ch an ce ll or He nr y Denma rk Bell err by granting the Plaintiffs’ Motion f or Partial Summary Judgmentand denying

the Defendant’s Motion for Summary Judgment? The City states the issue on a

ppeal asfollows: I. Whether

the trial

court wa s in erro

r in granting summary judge

ment (sic) in favor o f th e City of Brentwood

pursuant to th e Tennessee Government Tort Liab ility Act, on the basis of immunity to the pla

intiffs’ theories of negligent inspection, issuance or failure to issue a building permit and nuisance.

FIRST AN

D SECOND ISSU

ES Liability of Developer

T.C.A. § 28 -3-202 r

eads as f ollows: Limitation of actions . - All actions to recover damages f or any deficiency

in the design, planning, supe rvision, observation of construction, or co ns truction of an improvemen t to r eal property , for injury to proper ty, real or person a l, arising

out of any

such def iciency , or for i njury

to the person or fo r wron gful death arising out of any such de fi ci en cy, shall be brought against any person performing or furnishing the design, planning, supervision, observation of construction, construction of, or land surv eying in

connection wit h, such an improvement within four (4) years aft e r substantial completion of such an improvement. [Acts 1965, ch. 353, § 1; 1980 (Adj. S.), ch. 811, § 1; T.C.A., § 28-314.]

As found by the Trial Judge, the ba sic problem was excessive water on the lot, pa

rticular ly under the house, which plaintiffs reported to the developer “early

in 1988" (before

March) . This suit-12-

was initiated on Decemb er 14, 19 93, more t han four ye ars late

r, at whic h time, an y a ction ag ainst the developer for neglige

nce in the planning of the construction was barred. Plaintiffs insist that the dev eloper was guilty of fr

audulent concealment which tolled the statute of limitations and/or estopped the defense of statute of limitations. A careful examination of appellant’s brief and the record fails to disclose any citation to the record or evidence indicating any

concealment or failure
to disclose

by t he developer sub sequent t o the occa sion in “e arly

in 1988" w

hen plain tiffs’ disclosed thei r knowledge of the defects by complaining of them to the developer. No such subseq uen t negligent or fraudulent conc ealment is cited in plaintiffs’ brief or found in the record.

Neverth eless, plaintiffs insist that the dev elop er committed actionable subsequent concealment

when, in their efforts to

satisfy plaintiff s’ compla ints, they agreed to and did

install an 8" drainag e pipe pa

rtly on plaintif

fs’ prop erty

and part ly u pon the pu

blic rig ht of way . Plaintiff

s’ brief containscitationsof numer ous author

ities which are ap

plicable to particular circumstances, but the brief c ontains no

citation o f evidence of fa cts in the p

resent c ase which would es ta b lish wrongdoing by either def

endant at any

time within the period of limitation prior to the filing of this suit.

Plaintiff

s assert: The defendants’ conduct in performing c orrective work while not disclosing a full history of the problem effec ted an es toppel of

the statut e of limita

tion probl em.
This Court doe s not under stand th e general rule to be that any effort b y a

wrongd oer to remedy the effect of the wrongdoing would effectively

bar the defe nse of the statute of limitations

. In Jackson v. Kemp , 211 Tenn. 438, 365 S.W.2d 437 (1963), the Supreme Court said:

A statute of limitation ma y be waived b y e

xpress c ontract or by nece ssary implications or it s b en ef it s m ay b e lost by conduct invokin g the estab lished principles of estoppel in pais . (Emphasis supplied)

N o ev idence is cited or found to show that either or both of the defenda nts represented, promised or contracted to remedy all of the subject defects in exchan ge for plaintiff s’ delay in-13-

bringing suit, or tha

t plaintif fs did allo w the stat

ute to expir

e inreliance upon such

representation, p romise or contr act. Sharks v. Metropolitan Government of Nashville and Davi dson County , Tenn

. App. 1989 states: Where by promises a nd appearances one part y is inducedto believ e that the other pa rty is going to pay

or otherwis e satisfy the

claim of the first party, and in reliance on t hat representation

the first par

ty d elay s filing s uit , th e party making the representation may be estopped to raise the statute of limitations as a defense. (Emphasis supplied)

In short, plaintiffs have not provided this Court with an evidentiary basis upon which this Court might apply the authorities c ited.

THIRD ISSUE Immunity of the City

T.C.A. § 29 -20-205 p

rovides i n pertine

nt part a s follows: Removal of immunity for injury caused b y negligent act o r omis sion of employees - Exceptio ns . - Immunity from suit of all governmental entities is removed for injury proximately caused by

a negligent act or

omission of any employ ee within the scope of his employment except if th e i nj ur y:

- - - - (2) Arises out of fa

lse imprisonmentpursuant to a mittimus from a c ourt, fa lse arrest, malicious prosecution, intentional trespass, abuse of process , libel, sla

nder, de ceit, interference

with contract right s , infliction of mental anguish , invasion

of righ t of priva cy , or civil r

ights; (3) Arises outof the issuance, denial, suspension or revoca tion of, or

by t he failu re or re fusal to issue, de ny, suspend or revoke, any permit, license , certifi cate, a pproval, order or similar authorization; (4) Arises outof a failure to make an inspection, or by r eason of making a n inadequ ate or negligent

inspection of an y pr op er ty.

Plaintiff s’ suit against the City is clea

rly based upon a

lleged acts or o missions of

its age nts making an inadequate or neglige nt inspection of property, a nd/or issuance o f a pe rmit, license, certificate, approval or authorization. It is true that plaintiffs ar gue that de fendants created a-14-

nuisance , but no evidence i s cited or found tha

t the eff orts of the

defenda nts, or either of th

em to remedy the e

ffects of the defects crea

ted a nuisance.

Ac co rd in gl y, this Court concurs in the finding of the Trial Court that the City of Br entwood and its emp loy ees are

statutori ly im

mune to the

rights o f action

asserte d by

plaintiff s.

The disposition of t his appe al is contr ary to the des ire of thi s Court to r each a f air resu lt. However, circumst

a nc es over which this Court has no control require the disposition. Governmental immunity from suit has its roots in the common law; and, under our Constitution the power of limiting that immunity is reserved to the Leg

islature. In its wisdom, the L egislature has

seen fit to preserve that immunity in respect to the a ctio ns and inaction of the City in the prese nt

case.

Statutes of

limitation are likewise the exclusive province of the Leg islature, and exceptions
to legislation may not be g ranted by the c ourts. Apparent exceptions are not true exceptions but recognitionof special facts which produce a different right of a ction to which a different limitation applies.

Finally, plaintiffs’ fa

ilure to timely ascerta

in their rights and timely pur sue their remedies has its part in their failure to obtain relief.-15- The judgment of the Trial Court is affirmed. Cos ts of this appeal are taxed against the plaintiffs and the ir surety. The c ause is remanded to the Trial Court for further nec essary procee dings.



### AFFIRMED A ND REMAND ED

___________________________________ HENRY F. TODD PRESIDING

JUDGE, MIDDL

E SECTION

CONCURS:

_________________________________ BEN H. CANTRELL , JUDGE

_________________________________ WILL IAM B. CAI

N, SPECIAL JUDGE