FILED

October 10, 1997

Cecil W. Crowson

Appellate Court Clerk

CHARLES W. BERNARD and wife, )

KAREN BERNARD, )

) Williamson Chancery

Plaintiffs/Appellants, ) No. 22425

)

VS. )

) Appeal No.

HOUSTON EZELL CORPORATION, THE ) 01A01-9701-CH-00015

CITY OF BRENTWOOD, TENNESSEE and )

LAND INVESTMENT CORPORATION, )

)

Defendants/Appellees, )

)

IN THE COURT OF APPEALS OF TENNESSEE

MIDDLE SECTION AT NASHVILLE

APPEAL FROM THE WILLIAMSON COUNTY CHANCERY COURT

AT FRANKLIN, TENNESSEE

HONORABLE CORNELIA A. CLARK, JUDGE

William Kennerly Burger

301 N. Spring Street, P.O. Box 398

Murfreesboro, TN 37133-0398

ATTORNEY FOR DEFENDANTS/APPELLANTS

David J. White, Jr.

WHITE & REASOR

3305 West End Avenue

Nashville, TN 37203

ATTORNEY FOR PLAINTIFFS/APPELLEE, HOUSTON EZELL CORPORATION

Van French, BPR #6922

The City of Brentwood

8307 Bridle Place

Brentwood, TN 37027

ATTORNEY FOR DEFENDANT/APPELLEE

AFFIRMED AND REMANDED

HENRY F. TODD

PRESIDING JUDGE, MIDDLE SECTION

CONCURS:

BEN H. CANTRELL, JUDGE

WILLIAM B. CAIN, SPECIAL JUDGE
-2-

CHARLES W. BERNARD and wife, )

KAREN BERNARD, )

) Williamson Chancery

Plaintiffs/Appellants, ) No. 22425

)

VS. )

) Appeal No.

HOUSTON EZELL CORPORATION, THE ) 01A01-9701-CH-00015

CITY OF BRENTWOOD, TENNESSEE and )

LAND INVESTMENT CORPORATION, )

)

Defendants/Appellees, )

)

O P I N I O N

This suit arose out of alleged defects in the planning of a subdivision lot and defects in

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

The suit against The City of Brentwood was 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 after a hearing upon the merits. The manner of

disposition of the remaining defendant, Land Investment Corporation, will be detailed hereafter.

PLEADINGS

The complaint alleged in part:

2. TheDefendantHOUSTON EZELL CORPORATION

is a corporation chartered under the laws of the State of

Tennessee and doing business within Williamson County,

Tennessee. Defendant HOUSTON EZELL CORPORATION

is the developer of the above-described Brentmeade Estates

Subdivision, which includes Lot No. 156, of Section II,

Revision Number 1, of that subdivision. Plaintiffs allege and

aver that the said HOUSTON EZELL CORPORATION,

directly or through their agents, prepared information required

by both state and local development statutes and ordinances,

necessary for the submission and approval of the abovedescribed Brentmeade Estates Subdivision by the local

planning authority, specifically the Brentwood Planning

Commission.
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5. Included among the mandatory subdivision

regulations applicable to the above-described tract of land is

§ 506 of the Brentwood Subdivision regulations, which

provides as follows:

“Suitability of the land. The Planning Commission shall not

approve the subdivision of land if, from adequate

investigations conducted by all public agencies concerned, it

has been determined that in the best interest of the public the

site is not suitable for platting and development purposes of

the kind proposed.

Land subject to flooding and land deemed to be

topographically unsuitable shall not be platted for residential

occupancy, or for any other uses which may increase flood

hazard, endanger health, life or property, or aggravate erosion.

Such land within the plat shall be set aside for such uses as

shall not be endangered by periodic or occasional inundation

or shall not produce satisfactory living conditions.

- - - -

5. Further §602.3 of the Brentwood Subdivision

Regulations outlines minimal requirements for proper lot

drainage within the subdivision proposed for development.

- - - -

7. The Defendant, LAND INVESTMENT

CORPORATION, is the grantor of the real estate property.

The real estate was constructed by contractor T. J. Neumann

and Associates, although the true grantor in interest is

Defendant LAND INVESTMENT CORPORATION.

- - - -

9. PlaintiffsCHARLESW.BERNARDandwife,

KAREN BERNARD allege and aver that, commencing

almost immediately upon their occupancy of the property,

they became awareof an unusual water accumulation problem

beneath the residence constructed upon Lot 156, manifested

periodically by the accumulation of as much as two to three

feet of water beneath the house, often inundating the central

heat and air conduits and soaking the floor joists and other

areas beneath the residence. Plaintiffs allege and aver that,

upon complaining of the propensity of the lot to frequently

flood beneath the residence, efforts were immediately

commenced by the developer HOUSTON EZELL

CORPORATION and the grantor, LAND INVESTMENT

CORPORATION, to correct the problem. Plaintiffs allege

that those corrective efforts, although providing some

temporary, mitigating relief, failed to provide a permanent,

adequate remedy. Extensive excavation around and beneath

the residence occurred in 1990 as the Defendants HOUSTON

EZELL CORPORATION and LAND INVESTMENT

CORPORATION understood more dramatic efforts to solve

the water accumulation problems. Those extensive efforts in

1990 provided some abatement to the problem, although the

relief was temporary in nature, and proved ultimately to be

unsatisfactory.

- - - -
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12. Plaintiffs allege and aver that they are entitled

to the remedy of recision as to the grantor, LAND

INVESTMENT CORPORATION, which is a company

related to the parent company, HOUSTON EZELL

CORPORATION.

- - - -

14. Plaintiffs allege and aver that, due to the

statutory obligation of the CITY OF BRENTWOOD,

TENNESSEE to properly review, inspect, and approve land

proposed for subdivision development, the CITY OF

BRENTWOOD, TENNESSEE is legally responsible, both

upon legal theories of permanent nuisance and tort, due to the

improper supervision of the development of Lot 156.

- - - -

BASED UPON THE FOREGOING ALLEGATIONS,

PLAINTIFFS SEEK THE FOLLOWING RELIEF:

A. A finding by the Court that the above

described condition constitutes a permanent nuisance, which

cannot be abated or minimized by expenditures of additional

sums or additional corrective work.

B. That, in the alternative, a mutual mistake of

fact or negligent misrepresentation existed at the time of the

sale of the property to the Plaintiffs and that, accordingly,

Plaintiffs should be granted recision of the transaction,

together with incidental and consequential damages

appropriately shown.

C. A finding that the CITY OF BRENTWOOD,

TENNESSEE is jointly and severally liable due to its failure

to follow the requirements which the CITY itself promulgated

for proper review of potential drainage problems in proposed

subdivision development.

D. The joint and several liability for the damages

shown by the Plaintiffs against the Defendant HOUSTON

EZELL CORPORATION, developer of Brentmeade Estates

Subdivision.

E. For such further and general relief to which

Plaintiffs may be entitled, including all incidental and

consequential damages, attorney’s fees, and court costs.

F. A finding that the conduct of the developer

constitutes a violation of the Tennessee Consumer Protection

Statute, specifically Tennessee Code Annotated, § 47-18-101

et seq, entitling the Plaintiffs to an assessment of attorney’s

fees and, if intentional misconduct is shown, an award of

treble damages against the developer and grantor. 

The City moved to dismiss for failure to state a claim for which relief can be granted and

subsequently moved for summary judgment.
-5-

The Trial Judge overruled the motion of the City to dismiss and sustained the motion of

the City for summary judgment.

The defendant-developer filed an answer including the following:

7. The Defendant admits that Land Investment and

Development Corporation, the predecessor of Houston Ezell

Corporation, transferred and conveyed the property described

in paragraph 1 of the Complaint to T. J. Neumann and

Associates, Inc. constructed a residence on the property; and

that T. J. Neumann and Associates, Inc. transferred and

conveyed the property to the Plaintiffs. 

- - - -

1. The Complaint fails to state a claim against the

Defendant upon which relief can be granted.

2. The causes of action alleged in the Complaint are

barred by the applicable statute of limitations.

3. Neither the Defendant or Land Investment and

Development Corporation, its predecessor, was guilty of any

negligence which proximately caused or contributed to the

Plaintiffs’ water problem or any damages, losses or expenses

incurred by the Plaintiffs. 

Plaintiffs moved for partial summary judgment against the seller, which 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 Summary Judgment is not well taken and the same

is hereby overruled. Plaintiff is hereby awarded summary

judgment on the issue of defendant/developer’s liability

provided said defendant fails to sustain the affirmative

defense of bar of the statute of limitations.

ALL SO ORDERED this 14th day of December 1995.

The developer moved for an order bifurcating the remaining issue of statute of limitations

from the issue of damages, and for hearing on the issue. The motion was sustained.
-6-

All pleadings and orders to this point were under captions containing the names of all

three captioned defendants.

The captions of the succeeding memorandum and final order of the Trial Judge contain

only the name of the defendant-developer, omitting the other two defendants.

The Memorandum reads as follows:

This bifurcated case was heard on August 16, 1996, on

the affirmative defense of statute of limitations and/or statute

of repose. By order entered December 14, 1995, Judge Henry

D. Bell granted summary judgment as to liability, except for

defendant’s right to assert the statute of limitations defense.

By order entered April 23, 1996, the court bifurcated the

remaining issue of damages and set a hearing on the statute of

limitations issue.

On August 16, the court heard the testimony of the

parties and received additional evidence on the sole issue

before it. After due consideration, the court finds that the

statute of limitations/statute of repose defense has been

sustained and the case must be dismissed.

The gravamen of this complaint is that both a surface

water and subsurface water problem exist on the lot and under

the house where plaintiffs’ residence is located. Their

homebuilder, 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 negligence,

permanent nuisance, and violation of the Consumer

Protection Act.

The parties do not dispute that defendant sold this

property to the builder on March 31, 1986. The builder then

constructed a home on the lot. The home was substantially

completed and the plaintiffs received their deed on March 27,

1987. This lawsuit was not filed until December 14, 1993,

six and one-half years later.

At issue in the court’s determination are the three-year

statute of limitations for damage to real property (T.C.A. §

28-3-105); the four-year statute of repose related to real

property construction (T.C.A. § 28-3-202); and the one-year

statute of limitations (with a four-year statute of repose) for

violations of the Tennessee Consumer Protection Act (T.C.A.

§ 47-18-110). Plaintiffs’ suit was not brought timely 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 real cause of action.
-7-

The pertinent facts are as follows. DefendantHouston

Ezell Corporation (formerly known as Land Investment

Corporation) purchaseda large acreage in Williamson County

for the purpose of subdividing the land into one-acre tracts on

which single family residences could be constructed.

Defendant developed the land in compliance with all

applicable governmental rules and regulations. At no time

during the development process did any employee, agent, or

other representative of defendant see or hear about any

unusual flow or accumulation of water on the acreage which

eventually comprised the subdivision known as Brentmeade

Estates. Defendant ultimately sold Lot 156, the lot in

question of this lawsuit, to Neumann in March 1986.

Neumann then began construction of a home on this lot.

During construction of the home, a Neumann

employee of the builder observed water seeping from a rock

on the property. Neumann’s foreman called defendant for

advice because the builder was new to Tennessee and was

inexperienced in dealing with subsurface water issues. Ted

Sanders, an officer of defendant, went to the lot but did not

observe any flow or accumulation of water from or around the

rock at that time. Mr. Sanders made suggestions to the

foreman that an underground drainage pipe be installed to the

edge of the property line. Neumann completed this

installation. Defendant then agreed to install a pipe from the

property line under the street to connect to a storm drain on

the opposite side 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

pipe on the property.

Plaintiffs purchased the lot and moved into the

residence in March 1987. Several months after they took

possession, plaintiffs noticed water standing in their back yard

after a heavy rain. They had never experienced this problem

before, but it did not cause them great concern at the time.

Within a month or two after that, a neighbor called and

pointed out water flowing on their property between the two

houses from an area in the back of their property. Water was

not only standing but flowing.

About six months later, in early 1988, plaintiffs

observed that every time it rained water would start pooling

in the same back yard area. The accumulation became much

larger than before. Mr. Bernard pinpointed six areas flowing

from underground that contributed to the pooling. This did

create concern. Mr. Bernard then contacted defendant for the

first time. He also contacted his attorney, who came to the

site, personally observed the six flowing streams, and made

a video.

In response to that call Doug Sanders, an agent of

defendant and acquaintance of Mrs. Bernard, came

immediately to the property and viewed the six water sources.

Plaintiff requested help from defendant to resolve the
-8-

problem. A few weeks later, in about March 1988, an

electrician working under plaintiffs’ house advised them

about a “serious” standing water problem there. Mr. Bernard

then went under his home for the first time. He again called

defendant, reported the problem, and sought assistance.

Defendant representatives returned to the house, observed the

water and building debris left by Neumann after construction,

and took action to pump the water and remove the debris from

underneath the house. The positive drain also was cleaned.

In the fall of 1988, Mr. Bernard again reported an

accumulation of water under his house. Defendant again

responded and pumped out the water. At that time Ted

Sanders also employed Barge Waggoner Sumner & Cannon

to investigate. Dan Barge, III proposed the installation of a

French drain to intercept the water coming from the back of

the lot and divert it around the house. This drain was

installed at no cost to plaintiff in early 1989. The defendant

also employed a subcontractor to rework the earthen drainage

ditch at the rear of the property. Immediately upon

completion of these actions, all parties hoped that they had

corrected the problem.

However, within six to eight months after this work

was done by defendant, Mr. Bernard testified that it was

“quite evident” that the problems had not been cured. At that

time he contacted an attorney to give him advice about what

his rights were. However, he did not contact defendant again

until early 1993.

In 1993 plaintiffs noticed a musty odor under their

house, and identified water accumulating there again. They

again contacted defendant, who employed a hydrologist to

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 recommendation about what

needs to be done to correct it. Plaintiffs claim that the receipt

of this report constitutes the creation 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 their property (not done by defendant), and the

failure to advise of that construction, constitutes one part of

their claim. They do not assert that plaintiffs created the

underground springs. They do contend that defendant’s

superior knowledge about the flowing water in 1986 gave rise

to a duty further to investigate it, and the failure to take that

step gives rise to a cause of action. They apparently did not

allege that any remedial work done in 1988 or 1989 gives rise

to a cause of action, but only that that work helped conceal

the extent of the problem. Plaintiffs rely heavily on

statements made in Prescott v. Adams, 627 S.W.2d 134

(Tenn. App. 1981). However, that case is distinguishable

because it arose out of a court’s grant of summary judgment.
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In that case the trial court found that there were issues of fact

concerning the allegations of fraud and concealment, and that

summary judgment was not appropriate. In the instant case

defendant also did not prevail on its earlier motion for

summary judgment. The matter is before the court now,

however, after trial on the merits. This court has heard more

proof than was presented during the motion for summary

judgment, and is in a position to evaluate and weigh the proof

presented.

This court is convinced that the cause of action for

damages arose, if at all, many years before this lawsuit was

filed. If there is a permanent nuisance, it has existed since

before plaintiffs purchased their property, and has manifested

itself in several ways. 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 cause of action by defendant. In addition, the defendant

must know that the plaintiff has a cause of action and must

conceal it in such a fashion that, even if plaintiff were

diligent, he would not be 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 perpetrating it, unmixed 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

affirmatively committed fraud or concealed a cause of action.

Each time plaintiffs called a representative of defendant

responded. Both parties had the same amount of information

concerning the problems as they developed. From 1988

forward, Mr. Bernard was fully aware that there were at least

six springs causing subsurface water flow in his back yard.

He was aware that water stood under the house after each

rain. Plaintiffs contend that they did not know they had a

cause of action until the Ogden report was made in 1993.

However, they have presented no proof to suggest why they

could not have hired a hydrologist earlier.

Ultimately it is not necessary for the court to analyze

each potential accrual date discussed by the parties in this

lawsuit. It is sufficient to find that the last work performed by

defendant on this property and the last statements made by

defendant, occurred in early 1989. Within six or eight months

after that time, plaintiff Charles W. Bernard was aware that

that work had not successfully contained the problem and that

the problem continued to exist. This concerned him enough

to cause him to call his attorney and to seek advice about his

rights in the situation. At this point, if not before, plaintiffs

clearly had a cause of action, and knew they had a cause of

action. Harvey v. Knox County, 1988 Tenn. App. Lexis 487

(Tenn. App. M.S., August 3, 1988). It was not necessary that

they know all the reasons for the problem or the extent of the

problems. They knew the problem was worse after a heavy
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rain fall, but testified that it did not rain much between 1989

and 1993. Plaintiffs did not made any further contact with

defendant until early 1993, and did not file this lawsuit until

December 14, 1993. Their lawsuit is barred by all applicable

statutes of limitation and/or repose.

This Memorandum shall be placed of record, but need

not be spread upon the minutes of the court. An order of

dismissal is being entered contemporaneously.

The Order reads as follows:

In accordance with the Memorandum being entered

contemporaneously, IT IS HEREBY ORDERED,

ADJUDGED AND DECREED that plaintiffs’ case against

defendant Houston Ezell Corporation shall be, and is hereby,

dismissed. Costs are taxed to plaintiffs, for which execution

may issue if necessary.

The caption of the Notice of Appeal contains the names of all three defendants, but the

appeal bond is made only to the developer.

THE PARTIES AND ISSUES ON APPEAL

The cover, certificate of the Trial Clerk and brief of appellant list the names of all three

defendants. A brief has been filed in this Court on behalf of the developer, and a separate brief

has been filed on behalf of the City. No brief has been filed on behalf of Land Investment

Corporation.

Plaintiffs state the issues on appeal as follows:

1. Within the 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 was committed by the Defendant which

violated a duty to disclose, within the meaning of the T.C.A.

§ 28-3-205, tolling the statute of limitations?

2. Did the Defendant’s conductin performing the

corrective work, while not disclosing a full history of the

problem, effect an estoppel of the statute of limitations

defense?
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3. Was the trial court correct in its determination

that the CITY OF BRENTWOOD is immune from claims

arising from the CITY’S failure to conduct any final

inspection of the BERNARD residence and thereafter

permitting its sale and occupancy, after failing an earlier

inspection?

The developer states the issues on appeal as follows:

A. Did Chancellor (sic) Cornelia A. Clark err,

after hearing all the proof, by determining that the statute of

limitations barred the Plaintiffs’ alleged cause of action

against the Defendants?

B. Did Chancellor Henry Denmark Bell err by

granting the Plaintiffs’ Motion for Partial Summary

Judgment and denying the Defendant’s Motion for Summary

Judgment?

The City states the issue on appeal as follows:

I. Whether the trial court was in error in

granting summary judgement (sic) in favor of the City of

Brentwood pursuant to the Tennessee Government Tort

Liability Act, on the basis of immunity to the plaintiffs’

theories of negligent inspection, issuance or failure to issue

a building permit and nuisance.

FIRST AND SECOND ISSUES

Liability of Developer

T.C.A. § 28-3-202 reads as follows:

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. [Acts 1965,

ch. 353, § 1; 1980 (Adj. S.), ch. 811, § 1; T.C.A., § 28-314.]

As found by the Trial Judge, the basic problem was excessive water on the lot, particularly

under the house, which plaintiffs reported to the developer “early in 1988" (before March). This suit
-12-

was initiated on December 14, 1993, more than four years later, at which time, any action against

the developer for negligence in the planning of the construction was barred. Plaintiffs insist that the

developer was guilty of fraudulent 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 the developer subsequent to the occasion in “early in 1988" when plaintiffs’ disclosed

their knowledge of the defects by complaining of them to the developer. No such subsequent

negligent or fraudulent concealment is cited in plaintiffs’ brief or found in the record.

Nevertheless, plaintiffs insist that the developer committed actionable subsequent

concealment when, in their efforts to satisfy plaintiffs’ complaints, they agreed to and did install an

8" drainage pipe partly on plaintiffs’ property and partly upon the public right of way. Plaintiffs’

brief contains citations of numerous authorities which are applicable to particular circumstances, but

the brief contains no citation of evidence of facts in the present case which would establish

wrongdoing by either defendant at any time within the period of limitation prior to the filing of this

suit.

Plaintiffs assert:

The defendants’ conduct in performing corrective

work while not disclosing a full history of the problem

effected an estoppel of the statute of limitation problem.

This Court does not understand the general rule to be that any effort by a wrongdoer to

remedy the effect of the wrongdoing would effectively bar the defense 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 may be waived by express

contract or by necessary implications or its benefits may be

lost by conduct invoking the established principles of estoppel

in pais. (Emphasis supplied)

No evidence is cited or found to show that either or both of the defendants represented,

promised or contracted to remedy all of the subject defects in exchange for plaintiffs’ delay in
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bringing suit, or that plaintiffs did allow the statute to expire in reliance upon such representation,

promise or contract. Sharks v. Metropolitan Government of Nashville and DavidsonCounty,Tenn.

App. 1989 states:

Where by promises and appearances one party is

induced to believe that the other party is going to pay or

otherwise satisfy the claim of the first party, and in reliance

on that representation the first party delays filing suit, the

party making the representationmay 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 cited.

THIRD ISSUE

Immunity of the City

T.C.A. § 29-20-205 provides in pertinent part as follows:

Removal of immunity for injury caused by

negligent act or omission of employees - Exceptions. -

Immunity from suit of all governmental entities is removed

for injury proximately caused by a negligent act or omission

of any employee within the scope of his employment except

if the injury:

- - - -

(2) Arises out of false imprisonment pursuant to

a mittimus from a court, false arrest, malicious prosecution,

intentional trespass, abuse of process, libel, slander, deceit,

interference with contract rights, infliction of mental

anguish, invasion of right of privacy, or civil rights;

(3) Arises out of the issuance, denial, suspension

or revocation of, or by the failure or refusal to issue, deny,

suspend or revoke, any permit, license, certificate, approval,

order or similar authorization;

(4) Arises out of a failure to make an inspection,

or by reason of making an inadequate or negligent inspection

of any property.

Plaintiffs’ suit against the City is clearly based upon alleged acts or omissions of its agents

making an inadequate or negligent inspection of property, and/or issuance of a permit, license,

certificate, approval or authorization. It is true that plaintiffs argue that defendants created a
-14-

nuisance, but no evidence is cited or found that the efforts of the defendants, or either of them to

remedy the effects of the defects created a nuisance.

Accordingly, this Court concurs in the finding of the Trial Court that the City of Brentwood

and its employees are statutorily immune to the rights of action asserted by plaintiffs.

The disposition of this appeal is contrary to the desire of this Court to reach a fair result.

However, circumstances 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 Legislature. In its wisdom, the Legislature has

seen fit to preserve that immunity in respect to the actions and inaction of the City in the present

case.

Statutes of limitation are likewise the exclusive province of the Legislature, and exceptions

to legislation may not be granted by the courts. Apparent exceptions are not true exceptions but

recognition of special facts which produce a different right of action to which a different limitation

applies.

Finally, plaintiffs’ failure to timely ascertain their rights and timely pursue their remedies

has its part in their failure to obtain relief.
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The judgment of the Trial Court is affirmed. Costs of this appeal are taxed against the

plaintiffs and their surety. The cause is remanded to the Trial Court for further necessary

proceedings.

AFFIRMED AND REMANDED

___________________________________

HENRY F. TODD

PRESIDING JUDGE, MIDDLE SECTION

CONCURS:

_________________________________

BEN H. CANTRELL, JUDGE

_________________________________

WILLIAM B. CAIN, SPECIAL JUDGE