                 IN THE COURT OF APPEALS OF TENNESSEE

                             AT KNOXVILLE
                                                           FILED
                                                         February 24, 2000

                                                         Cecil Crowson, Jr.
                                                        Appellate Court Clerk

                                              E1999-02445-COA-R3-CV
BUFORD KNIGHT and wife,         )     C/A NO. 03A01-9905-CV-00169
ANNABELLE KNIGHT,               )
                                )
          Plaintiffs-Appellants,)
                                )
                                )
                                )
v.                              )     APPEAL AS OF RIGHT FROM THE
                                )     GREENE COUNTY CIRCUIT COURT
                                )
                                )
GREENE COUNTY, TENNESSEE, and   )
ALAN D. BROYLES, in his         )
capacity as County Executive    )
of Greene County, Tennessee,    )
                                )     HONORABLE JOHN K. WILSON,
          Defendants-Appellees. )     JUDGE


For Appellants                        For Appellees

WILLIAMS E. PHILLIPS                  JEFFREY M. WARD
Phillips & Hale                       DANIEL D. COUGHLIN
Rogersville, Tennessee                Milligan & Coleman
                                      Greeneville, Tennessee




                           O P I N IO N




AFFIRMED AND REMANDED                                       Susano, J.


                                  1
              This is an inverse condemnation action brought by

Buford Knight and Annabelle Knight against Greene County and Alan
D. Broyles, County Executive of Greene County (collectively “the
County”).       The trial court granted the County summary judgment,

finding that the plaintiffs’ action was barred by the statute of
limitations.1       The plaintiffs appeal, arguing that the trial
court erred in granting summary judgment because their cause of

action was filed pursuant to the savings statute, T.C.A. § 28-1-
105,2 and thus is not barred by the statute of limitations.


                                        I.


              The facts pertinent to the issue before us are not in

dispute.      In June, 1994, the County began construction of a road
on the subject property.          The plaintiffs sued the County for

trespass on August 19, 1994, claiming that the road on which the
County was working was a private road that belonged to them.                 The
plaintiffs sought damages and injunctive relief.              The County

answered by asserting that the plaintiffs had granted the County

  1
   The applicable statute of limitations is found at T.C.A. § 29-16-124
(1980), which provides as follows:

              The owners of land shall, in such cases, commence
              proceedings within twelve (12) months after the land
              has been actually taken possession of, and the work of
              the proposed internal improvement begun; saving,
              however, to unknown owners and nonresidents, twelve
              (12) months after actual knowledge of such occupation,
              not exceeding three (3) years, and saving to persons
              under the disabilities of infancy and unsoundness of
              mind, twelve (12) months after such disability is
              removed, but not exceeding ten (10) years.

  2
      T.C.A. § 28-1-105(a) (Supp. 1999) provides, in pertinent part, as follows:

              If the action is commenced within the time limited by
              a rule or statute of limitation, but the judgment or
              decree is rendered against the plaintiff upon any
              ground not concluding the plaintiff’s right of action,
              or where the judgment or decree is rendered in favor
              of the plaintiff, and is arrested, or reversed on
              appeal, the plaintiff, or the plaintiff’s
              representatives and privies, as the case may be, may,
              from time to time, commence a new action within one
              (1) year after the reversal or arrest.



                                         2
an easement to use and maintain the road as a county road.

Following a bench trial, the trial court found that the disputed
roadway “is wholly upon the property of the plaintiffs and is a
private road.”   However, the trial court dismissed the trespass

claim, holding that the plaintiffs’ sole recourse was a suit for
inverse condemnation.   The trial court’s judgment was entered on
June 30, 1995.   On July 27, 1995, the County filed a motion to

reconsider.   The trial court denied this motion by order entered
December 21, 1995.   The plaintiffs filed the present cause of
action for inverse condemnation on January 6, 1997.



                                II.


          We review the trial court’s decision against the
standard of Rule 56.04, Tenn.R.Civ.P., which provides, in

pertinent part, as follows:


          the judgment shall be rendered forthwith if
          the pleadings, depositions, answers to
          interrogatories, and admissions on file,
          together with the affidavits, if any, show
          that there is no genuine issue as to any
          material fact and that the moving party is
          entitled to a judgment as a matter of law....



When reviewing a grant of summary judgment, an appellate court
must decide anew if judgment in summary fashion is appropriate.

Cowden v. Sovran Bank/Central South, 816 S.W.2d 741, 744 (Tenn.

1991); Gonzales v. Alman Constr. Co., 857 S.W.2d 42, 44-45

(Tenn.Ct.App. 1993).    Since this determination involves a

question of law, there is no presumption of correctness as to the

trial court’s judgment.    Robinson v. Omer, 952 S.W.2d 423, 426

(Tenn. 1997); Hembree v. State, 925 S.W.2d 513, 515 (Tenn. 1996).

In making our determination, we must view the evidence in a light


                                  3
most favorable to the nonmoving party, and we must draw all

reasonable inferences in favor that party.    Byrd v. Hall, 847

S.W.2d 208, 210 (Tenn. 1993).   Summary judgment is appropriate

only if no genuine issues of material fact exist and if the

undisputed material facts entitle the party to a judgment as a

matter of law.   Rule 56.04, Tenn.R.Civ.P.; Byrd, 847 S.W.2d at

211.



                                III.



          The parties agree that the County began constructing a

public road on the plaintiffs’ property in June, 1994.      Pursuant

to T.C.A. § 29-16-124, the plaintiffs had one year from the date

the County began construction to file a claim for inverse

condemnation.    Thus, the statute of limitations for the

plaintiffs’ action expired in June, 1995.    The plaintiffs did not
file their complaint alleging inverse condemnation until January,
1997 –- well after the statute of limitations had expired.       The

plaintiffs argue, however, that their complaint is not time-
barred because it was filed pursuant to the savings statute,
T.C.A. § 28-1-105.




          For the savings statute to apply to and save the

plaintiffs’ cause of action for inverse condemnation, their
original cause of action must have been one for inverse

condemnation and must have been filed within the original

limitations period, i.e., before a critical date in June, 1995.

See Bennett v. Town & Country Ford, Inc., 816 S.W.2d 52, 53-54

(Tenn.Ct.App. 1991).   We find that this did not occur.     In

August, 1994, the plaintiffs filed a complaint seeking damages


                                  4
against the County for trespass.       An action in trespass confirms

ownership of the subject property in the plaintiff; an action for
inverse condemnation is based upon a taking and confirms
ownership in the entity taking the property.      Thus, assuming

these causes of action are not alleged in the alternative, they
are mutually exclusive.   An action in trespass does not include
within its ambit an action for inverse condemnation.      In the

instant case, the plaintiffs’ complaint filed on August 19, 1994,
does not allege inverse condemnation in the alternative or
otherwise.   Because the plaintiffs did not pursue an inverse

condemnation action within the original limitations period, we
find that the statute of limitations bars their claim and
further, that the savings statute does not apply.



          Even if the plaintiffs’ complaint filed in 1994 could

be construed as an action for inverse condemnation, and we have
held that it cannot be so construed, we find that the complaint
in the instant case is nevertheless barred.      An action brought

pursuant to the savings statute must be brought within one year

of the termination of the original action.       Poppenheimer v. Bluff

City Motor Homes, 658 S.W.2d 106, 110 (Tenn.Ct.App. 1983); Evans

v. Perkey, 647 S.W.2d 636, 640-41 (Tenn.Ct.App. 1982).       Here, the

order dismissing the plaintiffs’ original complaint was entered

June 30, 1995; thereafter, the County filed a motion to
reconsider, which the trial court denied in an order entered
December 21, 1995.   Thus, the plaintiffs had one year from and
after December 21, 1995, to refile their complaint.       However,

they did not file their complaint until January 6, 1997.       Thus,

even if the savings statute was available to the plaintiffs –-
and we have held that it is not -- they failed to refile within

the one year period afforded by the savings statute.       We find no


                                   5
authority to support the plaintiffs’ contention that the one-year

savings statute does not begin to run until the 30 days to file a
notice of appeal has expired.   The critical date, for the purpose
of the commencement of the running of the one-year savings

statute is the date of entry of the judgment or order finally
concluding the proceedings in the trial court.    In this case,
that date was December 21, 1995.



          We therefore find that the statute of limitations ran
on plaintiffs’ claim for inverse condemnation in June, 1995, and

further, that the claim could not have been revived by operation
of the savings statute.   The trial court’s grant of summary
judgment was correct.



                                IV.



          The judgment of the trial court is affirmed.    Costs on
appeal are taxed to the appellants.    This case is remanded for

collection of costs assessed below, pursuant to applicable law.




                                   6
                               __________________________
                               Charles D. Susano, Jr., J.


CONCUR:



________________________
Houston M. Goddard, P.J.


________________________
Herschel P. Franks, J.




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