IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

October 11, 2016 Session

GEORGE MOORE, JR., ET AL. v. CITY OF CLARKSVILLE, TN

Appeal from the Chancery Court for Montgomery County

No. MC-CH-CV-RE-14-15 Ross H. Hicks, Judge

___________________________________

No. M2016-00296-COA-R3-CV – Filed October 31, 2016

___________________________________

Appellant landowners filed a complaint against the City of Clarksville under the theory of 

implied- in-fact contract, alleging that the City should repair and maintain Appellants‟ sewer 

line and arguing that the broken sewer line is an extension of the City‟s public sewer system. 

Appellants also requested compensatory damages resulting from the back-up of sewage into 

their home. The City argues that the broken sewer line is a private sewer, for which the City 

has no responsibility. The City filed a motion for summary judgment. Upon hearing the 

City‟s motion, the trial court found that Appellants‟ claim sounded in tort under the 

Tennessee Governmental Tort Liability Act and that the complaint was time barred. 

Discerning no error, we affirm.

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

Affirmed and Remanded.

KENNY ARMSTRONG,J., delivered the opinion of the court, in which ANDY D.BENNETT and 

RICHARD H. DINKINS, JJ., joined.

Joe Weyant, Clarksville, Tennessee, for the appellants, George Moore, Jr., and Andrea U. 

Moore.

Lance A. Baker, Jeffrey T. Goodson, and Roman S. Hankins, Clarksville, Tennessee, for the 

appellee, City of Clarksville.

OPINION

I. Background
- 2 -

On or about June 28, 2012, Appellants George and Andrea Moore purchased a home

located at 1747 Broadripple Drive in Clarksville, Tennessee. Approximately one year after

the purchase, sewage began to back-up into the house. Appellants consulted a plumber, who 

informed them that the pump on certain holding tanks in their yard was not functioning 

properly. The Appellants replaced the pumps, but soon experienced the same problem with 

sewage back-up. On June 26, 2013, Appellants consulted with the State of Tennessee, the 

Appellee City of Clarksville (“City”), and Roto-Rooter Sewer-Drain Service to discuss their

sewage system. During this meeting, an employee of the State of Tennessee advised the 

Appellants that the City was responsible for the sewer line. A Roto-Rooter representative 

suggested that the problem was not on Appellant‟s property but was “stopped up on [the] 

City side.”

Appellants‟ lot is part of the Marymont Subdivision development, which was 

originally owned by the subdivision developer, Bill Mace. In 2006, Mr. Mace sold the 

residence he constructed on the lot to Michelle and Timothy Ford, who sold the property to 

Appellants. Concurrent with the sale, the Fords provided Appellants with a Tennessee 

Residential Property Condition Disclosure Statement, wherein the Fords expressly advised 

Appellants that the property‟s “waste disposal” mechanism is not the “City Sewer” but, 

instead, a “private disposal system” with “Septic Tank[s].” The Fords represented that there 

were no defects or malfunctions in the system. In addition to the disclosure, the Fords 

executed a loan addendum, which advised the Appellants that the “property is not connected” 

to the City‟s “public sewer system.” The sewer line at issue runs across, or between, at least 

four other properties in the subdivision. The portion of the line that is affected, by a break or 

blockage, is undisputedly not on property owned by Appellants. As such, The Appellants 

argue that they have no access to the portion of the line at issue, and that the City has utility 

easements on all lots in the subdivision.

On June 4, 2014, Appellants filed suit against the City seeking an order requiring the 

City to repair the sewer line and seeking compensatory damages allegedly resulting from the 

back-up of sewage into their home and from the “maintenance and pumping of the City 

[septic] tanks.” As is relevant to this appeal, Appellants‟ complaint was brought under a

theory of implied-in-fact contract, which alleged that Appellants are third-party beneficiaries 

of a “contractual relationship between the City and [Mace],” whereby the “City effectively 

extended the City sewer system through the [Line]” and assumed the responsibility and costs 

of repairing and maintaining the line. 

On July 17, 2014, Appellee filed a motion to dismiss all claims alleged in the 

Appellants complaint. The trial court denied the motion in part on the implied contract 

claim, and granted the motion in part on the equal protection and regulatory taking claims, 

which are not at issue in this appeal. In its answer, filed on October 20, 2014, the City denied 

any liability for repairs or maintenance to the line and raised, as an affirmative defense, 

improper service of process based on Appellants‟ alleged failure to timely serve either the 
- 3 -

City mayor, or the City attorney. Although the proper parties were subsequently served on 

July 5, 2015, Appellee argued that this service was ineffective because the statute of 

limitations had expired. On June 5, 2015, after the parties had completed discovery, the City 

filed a motion for summary judgment arguing that the breach of implied contract claim was a 

tort claim barred by the Tennessee Governmental Tort Liability Act‟s (“GTLA”) twelve 

month statute of limitation. The City also argued that the undisputed material facts 

demonstrate that the Appellants could not prove the elements of an enforceable agreement 

between the parties. In sum, the City contended it was always understood by the Appellants 

and the former owner of the property that the City assumed no responsibility for the repair or 

maintenance of the sewer line that was installed on this property. 

Following a hearing, the trial court granted Appellee‟s motion for summary judgment 

by order of October 9, 2015. The trial court noted that, although the Appellants had brought 

their claim under an implied contract theory, their cause of action sounded in tort under the 

GTLA. The trial court held that the service of process and related statute of limitations 

arguments made by the Appellee were valid, and that Appellants‟ GTLA claim was timebarred. Substantively, the trial court also found that the sewer line at issue was a private line, 

for which the City bore no responsibility. The trial court subsequently denied Appellants‟ 

motion to alter or amend the judgment. Appellants appeal.

II. Issues

Appellants present the following issue for review as stated in their brief:

Did the trial court err in granting summary judgment to the Appellee, when an implied 

contract, not defeated by the statute of frauds, exists between the parties, and when 

the Tennessee Governmental Tort Liability Act does not apply to the Appellants‟ 

cause of action?

III. Standard of Review

Summary judgment is appropriate when “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. We review a trial court‟s ruling on a motion for 

summary judgment de novo, without a presumption of correctness. Rye v. Women’s Care 

Center of Memphis, MPLLC, 477 S.W.3d 235, 250 (Tenn. 2015); Dick Broad. Co., Inc. of 

Tenn. v. Oak Ridge FM, Inc., 395 S.W.3d 653, 671 (Tenn. 2013); see also Abshure v. 

Methodist Healthcare-Memphis Hosp., 325 S.W.3d 98, 103 (Tenn. 2010); and Bain v. 

Wells, 936 S.W.2d 618, 622 (Tenn. 1997). In doing so, we make a fresh determination of 

whether the requirements of Rule 56 of the Tennessee Rules of Civil Procedure have been 

satisfied. Rye 477 S.W.3d at 250 (citing Estate of Brown, 402 S.W.3d 193, 198 (Tenn. 
- 4 -

2013); Hughes v. New Life Dev. Corp., 387 S.W.3d 453, 471 (Tenn. 2012)). 

For actions initiated on or after July 1, 2011, the standard of review for summary 

judgment is governed by Tennessee Code Annotated Section 20-16-101. The statute 

provides:

In motions for summary judgment in any civil action in Tennessee, the moving 

party who does not bear the burden of proof at trial shall prevail on its motion 

for summary judgment if it:

(1) Submits affirmative evidence that negates an essential element of the 

nonmoving party‟s claim; or 

(2) Demonstrates to the court that the nonmoving party‟s evidence is 

insufficient to establish an essential element of the nonmoving party‟s claim.

Tenn. Code Ann. §20-16-101. However, “a moving party seeking summary judgment by 

attacking the nonmoving party‟s evidence must do more than make a conclusory assertion 

that summary judgment is appropriate on this basis.” Rye, 477 S.W.3d at 264. Rule 56.03 

requires that the moving party support its motion with “a separate concise statement of the 

material facts as to which the moving party contends there is no genuine issue for trial.” 

Tenn. R. Civ. P. 56.03. Each fact is to be set forth in a separate, numbered paragraph and 

supported by a specific citation to the record. Id. If the moving party fails to meet its initial 

burden of production, the nonmoving party‟s burden is not triggered, and the court should 

dismiss the motion for summary judgment. Town of Crossville Hous. Auth., 465 S.W.3d 

574, 578-79 (Tenn. Ct. App. 2014)(citing Martin v. Norfolk S. Ry. Co., 271 S.W.3d 76, 83 

(Tenn. 2008)). As our Supreme Court recently opined:

[T]o survive summary judgment, the nonmoving party “may not rest upon the 

mere allegations or denials of [its] pleading,” but must respond, and 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.” Tenn. R. Civ. P. 56.06. The nonmoving party “must do more 

than simply show that there is some metaphysical doubt as to the material 

facts.” Matsushita Elec. Indus. Co., 475 U.S. at 586, 106 S. Ct. 1348. The 

nonmoving party must demonstrate the existence of specific facts in the record 

which could lead a rational trier of fact to find in favor of the nonmoving 

party.

Rye, 477 S.W.3d at 265 (emphasis in original). If adequate time for discovery has been 

provided and the nonmoving party‟s evidence at the summary judgment stage is insufficient 

to establish the existence of a genuine issue of material fact for trial, then the motion for 
- 5 -

summary judgment should be granted. Id. Thus, even where the determinative issue is 

ordinarily a question of fact for the jury, summary judgment is still appropriate if the 

evidence is uncontroverted and the facts and inferences to be drawn therefrom make it clear 

that reasonable persons must agree on the proper outcome or draw only one conclusion. 

White v. Lawrence, 975 S.W.2d 525, 529-30 (Tenn. 1998). 

However, if there is any uncertainty concerning a material fact, then summary 

judgment is not the appropriate disposition. As stated by our Supreme Court in EVCO Corp. 

v. Ross, 528 S.W.2d 20 (Tenn.1975):

The summary judgment procedure was designed to provide a quick, 

inexpensive means of concluding cases, in whole or in part, upon issues as to 

which there is no dispute regarding the material facts. Where there does exist a 

dispute as to facts which are deemed material by the trial court, however, or 

where there is uncertainty as to whether there may be such a dispute, the duty 

of the trial court is clear. He [or she] is to overrule any motion for summary 

judgment in such cases, because summary judgment proceedings are not in any 

sense to be viewed as a substitute for a trial of disputed factual issues.

Id. at 24-25. 

IV. Analysis

The Appellants‟ complaint for damages and injunctive relief alleges that the “sewer 

service access to this home demonstrates an implied in fact contract, whereby any resident of 

the subject home was an intended beneficiary. From initial construction, the City effectively 

extended the City sewer system through the actual lines running to the Moores‟ home” 

(emphasis added). 

In its order granting summary judgment, the trial court stated in pertinent part:

13. The Court further finds that although the [Moores] label their claim 

against the City as a “breach of implied-in-fact contract” claim, the [Moores‟] 

claim sound in tort under the Tennessee Governmental Tort Liability Act 

(hereinafter, the “GTLA”), considering that the basis for the [Moores‟] claim 

against the City is the alleged “back-up of sewage into their home” as a result 

of an alleged “break or obstruction in the line,” and considering also that the 

[Moores] allege that the line is an extension of the City‟s public sanitary sewer. 

14. The Court finds that the GTLA claim accrued no later than June 26, 

2013, when the [Moores] met with various employees of the City, the State of 

Tennessee and Roto-Rooter, and received suggestions from the State and Roto-
- 6 -

Rooter during the meeting that the City was allegedly responsible for repairing 

the line; 

15. Although the [Moores] filed their Verified Complaint on June 4, 2014, 

within one year of the June 26, 2013 meeting, the record reflects that the 

[Moores] served the initial summons (along with the Verified Complaint) upon 

a City administrative assistant, rather than serving the City‟s Mayor or the City 

Attorney. The [Moores] did not issue new process until July 5, 2015, more 

than one year after the issuance of the initial Summons. As a result, the 

Verified Complaint did not toll the running of the GTLA‟s 12-month statute of 

limitations, which expired no later than June 26, 2014, 12 months after the 

aforementioned June 26, 2013 meeting;

16. Accordingly, the Court finds that the [Moores‟] GTLA claim is timebarred;

The Moores adamantly deny that the GTLA applies to their claim, arguing that their 

complaint and damages sound in contract rather than tort. However, the actual complaint 

does not allege a breach of contract, nor does the complaint seek rescission for breach of 

contract. Instead, the complaint asserts that “the sewer service access to this home 

demonstrates an implied in fact contract, whereby any resident of the subject home was an 

intended beneficiary.” The Moores seek an order requiring the “City to repair, at the City‟s 

cost, the sewer lines leading from the [Moores‟] home to the City manhole. In addition, the 

complaint seeks compensatory damages “for the many months of maintenance and pumping 

of the City tanks servicing the [Appellants‟] home. . . .” 

The gravamen of an action will determine the appropriate statute of limitations. Pera 

v. Kroger Co., 674 S.W.2d 715, 719 (Tenn. 1984); Mid-South Indus., Inc. v. Martin Mach. 

& Tool, Inc., 342 S.W.3d 19, 29 (Tenn. Ct. App. 2010). The gravamen of the complaint 

refers to the substantial point, the real purpose, or the object of an action, and the gravamen is 

not dependent upon the designation or form litigants ascribe to an action. Benz-Elliott v. 

Barrett Enterprises, LP, 456 S.W.3d 140, 148 (Tenn. 2015)(citing Redwing v. Catholic 

Bishop for the Diocese of Memphis, 363 S.W.3d 436, 457 (Tenn.2012)). In order to

determine the complaint‟s gravamen, the Tennessee Supreme Court has long held that one

must look to the factual basis for the cause of action regardless of the allegations of the 

complaint. See Swauger v. Haury & Smith Contractors, Inc., 512 S.W.2d 261 (Tenn. 

1974); Pinkerton and Laws Co. v. Nashville Flying Service, Inc., 402 S.W.2d 861 

(Tenn.1966). In Vance v. Schulder, 547 S.W.2d 927, 932 (Tenn. 1977), the Tennessee 

Supreme Court modified this analysis to require consideration of both the basis of the claim

and the type of injuriesfor which damages are sought. In the Benz-Elliott case, the Supreme 

Court clarified that the two-step approach articulated in Vance is the correct framework for 

courts to ascertain the gravamen of a claim for the purpose of choosing the applicable statute 
- 7 -

of limitations. When using this approach, a court must first consider the legal basis of the 

claim and then consider the type of injuries for which damages are sought. Benz-Elliott, 456 

S.W. 3d at 151. 

Applying the two-step analysis clarified in Benz-Elliott, the Moores‟ cause of action 

has, as a factual basis, damage to their property, i.e., raw sewage backing up into the house 

and no operational sewage system. Additionally, the Moores‟ are seeking compensatory 

damages. Generally, compensatory damages are intended to compensate an injured party for 

personal injury or property damage, thereby making the party whole again. Goff v. Elmo 

Greer & Sons Const. Co., Inc., 297 S.W.3d 175, 187 (Tenn. 2009) (citing Hodges v. S.C. 

Toof & Co., 833 S.W.2d 896, 901-02 (Tenn.1992)). Considering both the allegations in the 

complaint and the damages sought, we conclude that the trial court properly held that the 

gravamen of Appellants‟ complaint is damage to property, which sounds in tort.

In Shaw v. Cleveland Utilities Water Div., No. E2009-00627-COA-R3-CV, 2009 WL 

4250157, at *3 (Tenn. Ct. App. Nov. 30, 2009), Mr. Shaw sued a public utility for its refusal 

to perform repairs following the back-up of sewage into Mr. Shaw‟s rental property. The 

trial court found that there was no contract upon which to base a cause of action, and that the 

only cause of action was in tort. The trial court applied the one-year statute of limitations to 

all defendants, and dismissed the complaint against all defendants. We affirmed the trial 

court‟s findings. See Rubbermaid-Maryville, Inc. v. Barber & McMurry, Inc., No. 03A01-

9309-CV-00327, 1994 WL 45315, at *2 (Tenn. Ct. App. Feb. 15, 1994) (holding that 

“[w]hile plaintiff has alleged a claim for breach of contract, the cause of action has, as a 

factual basis, damage to property . . . . Accordingly, the gravamen of the complaint is 

damage to property which sounds in tort.”). See also Kirby Farms Homeowners Ass’n v. 

Citicorp, Citibank, N.A., 773 S.W.2d 249, 251 (Tenn. Ct. App. 1989)(finding that the 

gravamen sounded in tort and holding that “[a]lthough plaintiffs attempt to distinguish their 

case on the ground they are not alleging a tort, but suing simply because defendants failed to 

comply with their contract, which caused the damages complained of, their case cannot be so 

distinguished.”). 

Because Appellants are suing a governmental entity, their claims are subject to the 

GLTA. Tennessee Code Annotated section 29-20-201 provides that “all governmental 

entities shall be immune from suit for any injury which may result from the activities of such 

governmental entities wherein such governmental entities are engaged in the exercise and 

discharge of any of their functions, governmental or proprietary” except as otherwise 

provided. Any action filed under the GTLA “must be commenced within twelve months 

after the cause of action arises.” Tenn. Code Ann. §29-20-305. This statute of limitations is 

compulsory as “any claim for damages must be brought in strict compliance with the terms of 

this chapter.” Tenn. Code Ann. §29-20-201(c). 

GTLA‟s twelve month statute of limitations begins to run when the injury occurs or 
- 8 -

when the injured party discovers or reasonably should have discovered that he or she has a 

right of action against another party. Doe v Coffee Cty. Bd. of Educ., 852 S.W.2d 899, 904 

(Tenn. Ct. App. 1992)(citing Potts v. Celotex Corp., 796 S.W.2d 678,680 (Tenn. 1990) and 

McCrosky v. Bryant Air Conditioning Co., 524 S.W.2d 487, 491 (Tenn. 1975)). A cause of 

action is deemed to be discovered when the party knows that he or she has been injured and 

knows who allegedly caused the injury. Doe, 852 S.W.2d at 904 (citing Foster v. Harris,

633 S.W.2d 304, 304-05 (Tenn. 1982); Hathaway v. Middle Tenn. Anesthesiology, P.C.,

724 S.W.2d 355, 359 (Tenn. Ct. App. 1986); Woods v. Sherwin-Williams Co., 666 S.W.2d 

77, 79 (Tenn. Ct. App. 1983)); see also Mathis v. City of Waynesboro, No. M2014-00864-

COA-R3-CV, 2015 WL 1306915, at *7 (Tenn. Ct. App. Mar. 19, 2015), perm. app. denied

(Tenn. July 17, 2015) (“[T]he only relevant inquiry is whether the [plaintiffs] filed the 

lawsuit against the City within twelve month of the time that they knew they were injured and

that City may have caused the injury.”) 

Here, the trial court found that the GTLA claim accrued no later than June 26, 2013, 

when the Appellants met with various employees of the City, the State of Tennessee and 

Roto-Rooter and were told, that the City was responsible for repairing the line. The Moores 

do not dispute this finding on appeal. On June 4, 2014, Appellants filed suit against the City. 

The complaint and the summons were served on an administrative assistant employed by the 

City on June 9, 2014, which is within one year of the date the action accrued. However, Rule 

4.04(8) of the Tennessee Rules of Civil Procedure provides that service upon a municipality 

shall be made by “delivering a copy of the summons and of the complaint to the chief 

executive officer thereof, or to the city attorney.” Tenn. R. Civ. P. 4.04(8). Accordingly, 

Appellants‟ service on the administrative assistant was ineffective and did not toll the 

running of the one year statute of limitations. 

Rule 3 of the Tennessee Rules of Civil Procedure states as follows:

All civil actions are commenced by filing a complaint with the clerk of the 

court. An action is commenced within the meaning of any statute of limitations 

upon such filing of a complaint, whether process be issued or not issued and 

whether process be returned served or unserved. If process remains unissued 

for 90 days or is not served within 90 days from issuance, regardless of the 

reason, the plaintiff cannot rely upon the original commencement to toll the 

running of a statute of limitations unless the plaintiff continues the action by 

obtaining issuance of new process within one year from issuance of the 

previous process or, if no process is issued, within one year of the filing of the 

complaint.

Tenn. R. Civ. P. 3 (emphasis added). The City raised the defense of insufficient 

service of process in its answer; however, the Appellants did not reissue service immediately. 

The record shows that Appellants did not reissue service on the City Attorney within one 
- 9 -

year from issuance of the previous process. The Tennessee Rules of Civil Procedure, 

promulgated by our Supreme Court and approved by the General Assembly, “have „the force 

and effect of law.‟” Hall v. Haynes, 319 S.W.3d 564, 571 (Tenn.2010) (quoting Crosslin v. 

Alsup, 594 S.W.2d 379, 380 (Tenn.1980)). Consequently, we conclude that the trial court 

was correct in holding that Appellants‟ complaint is time-barred under Tennessee Code 

Annotated section 29-20-201(c). 

V. Conclusion

For the foregoing reasons, we affirm the trial court‟s order granting summary

judgment. The case is remanded to the trial court for such further proceedings as may be 

necessary and are consistent with this opinion. Costs of the appeal are assessed against the 

Appellants, George Moore, Jr., Andrea U. Moore, and their surety, for all of which execution 

may issue if necessary.

_________________________________

KENNY ARMSTRONG, JUDGE