                    IN THE COURT OF APPEALS OF TENNESSEE
                               AT KNOXVILLE
                             August 23, 2002 Session

 RAY D. EDWARDS, SR., and wife, JEWELE C. EDWARDS, and JOHN F.
  GAZICK, and wife, HELENE K. GAZICK v. HALLSDALE-POWELL
         UTILITY DISTRICT KNOX COUNTY, TENNESSEE

                   Direct Appeal from the Circuit Court for Knox County
                  No. 3-104-00  Hon. Wheeler A. Rosenblam, Circuit Judge

                                               FILED SEPTEMBER 25, 2002

                                  No. E2002-00395-COA-R9-CV



This is an appeal from the grant of partial summary judgment for defendant that plaintiff could not
maintain an action for inverse condemnation. On appeal, we vacate the grant of summary judgment.

Tenn. R. App. P.3 Appeal as of Right; Judgment of the Circuit Court Vacated and Remanded.

HERSCHEL PICKENS FRANKS , J., delivered the opinion of the court, in which CHARLES D. SUSANO,
JR., J., and D. MICHAEL SWINEY, J., joined.

J. Myers Morton and George W. Morton, Jr., Knoxville, Tennessee, for Appellants.

Samuel C. Doak and Dan D. Rhea, Knoxville, Tennessee, for Appellee.



                                              OPINION



                In this action for damages under theories of inverse condemnation and nuisance, the
Trial Court granted defendant partial summary judgment as to plaintiffs’ claim for inverse
condemnation, and held that plaintiffs’ claims would be tried pursuant to the Governmental Tort
Liability Act. The Court then permitted an appeal pursuant to Tenn. R. App. P. 9, which we granted.

                Plaintiffs sued defendant which is a sewer provider for plaintiffs’ homes, alleging that
in December 1999, raw sewage backed up into their homes and flooded the lower level of both
homes, causing significant damage. Defendants answered denying all allegations except that it was
a statutorily created utility district, subject to the Governmental Tort Liability Act, and that it
provided service to the area where plaintiffs reside.

                Plaintiffs filed a Motion for Summary Judgment, and a statement of undisputed facts,
setting forth the following facts:

               1.      Defendant maintained the sewage system in such a way that sewage backed
                       up into plaintiffs’ homes;

               2.      The sewage backup interfered with the common and necessary use of
                       plaintiffs’ homes;

               3.      Plaintiffs could not sell their homes without disclosing the sewage problem.

               Plaintiffs also filed the affidavits of the parties, which allege that the homes still
contain the smell of sewage, and that plaintiffs have been deprived of the use and enjoyment of their
homes, and would have trouble selling their homes due to the problem.

                Defendant then filed a Motion for Partial Summary Judgment as to Plaintiffs’ Claim
for Inverse Condemnation, and alleged there were no material facts in dispute, and that it was
entitled to judgment as a matter of law. Defendant submitted a Rule 56.03 Statement of Additional
Facts, and stated that the cause of the sewage backup was a root clog in the main sewer line, and that
the root clog had been removed. Defendant stated plaintiffs’ homes were cleaned and disinfected,
and repairs were made.

                Defendant attached the Affidavit of Robert Campbell, a consulting engineer who said
that one solution to this problem would be the installation of a grinder pump station between each
of the homes and the main sewer line, which would prevent backflow. He stated that this would cost
$3,000.00 to $5,000.00 per home. Defendant also presented an affidavit of Gary Cobble, a licensed
contractor who inspected the homes. He stated, in his opinion, the homes could be repaired and
fully remediated, and attached estimates for repair work.

                Plaintiffs filed the Affidavit of Hop Bailey, Jr., who is a realtor and real estate
appraiser in Knoxville, who stated that in his opinion the value of plaintiffs’ homes had been reduced
to zero. Plaintiffs also filed a Supplemental Affidavit from Bailey, which states that if plaintiffs
were trying to sell their homes, plaintiffs would be required to disclose the sewage issue by virtue
of the Tennessee residential disclosure law, and that his opinion was that a buyer would not likely
purchase the home knowing of the sewage problem.

                The Trial Court granted defendant’s Motion and plaintiffs have appealed. Plaintiffs
alleged that their property has been taken by defendant because they have suffered a total loss of
market value.

               Article I, Section 21 of the Tennessee Constitution provides that “no man’s particular


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services shall be demanded, or property taken, or applied to public use, without the consent of his
representatives or without just compensation being made therefor.” Prior cases dealing with the
issue of inverse condemnation, as well as the eminent domain statute, Tenn. Code Ann. §29-16-123,
held that the question of whether a taking of property has occurred is a question for the jury. See
Jackson v. Metropolitan Knoxville Airport Auth., 922 S.W.2d 860 (Tenn. 1996); Johnson v. City of
Greeneville, 435 S.W.2d 476 (Tenn. 1968). In Jackson, the Trial Court had granted defendant’s
motion to dismiss for failure to state a claim of inverse condemnation, where the complaint had
alleged the taking of plaintiff’s property which was contiguous to the Knoxville Airport by constant
overflight of planes and noise vibration and pollution associated therewith. Id. The Supreme Court
said that it had to review the ruling by taking all material facts as true and construing the complaint
liberally in plaintiff’s favor, and then determining whether plaintiffs had alleged facts sufficient to
establish a jury question regarding whether a taking had occurred. Id.

                Since the instant case involves a motion for summary judgment rather than a Tenn.
R. Civ. P. 12.02 motion, we are required to “view the evidence in the light most favorable to the
nonmoving party and must also draw all reasonable inferences in the nonmoving party's favor.”
Staples v. CBL & Associates, Inc., 15 S.W.3d 83, 89 (Tenn. 2000). Then, we must decide whether
there is a general issue of material fact rendering partial summary judgment inappropriate.

                 In Jackson, the Supreme Court clarified the requirements for proving a prima facie
cause of action for inverse condemnation. The Court stated that the plaintiff had to allege 1) a direct
and substantial interference with the beneficial use and enjoyment of the property, 2) interference
which was repeated and not just occasional, and 3) interference which peculiarly affected the
property at issue and resulted in a loss of market value, i.e. the interference had to be greater than
or different from that suffered by the general public as a whole. Id. at 865. Jackson was dealing
with different factual circumstances, and tailored its analysis to the specific interference, i.e.,
overflight of airplanes. However, the Court expounded on earlier takings cases, and explained that
such cases usually involved either a continuing physical occupation or a complete destruction of
property rights. Id. The Court also cited Johnson, another airplane overflight case, wherein the
Court implied that any time there was an actual physical injury to property, the owner has grounds
to allege that a taking has occurred. The more difficult issue in that case, as well as in Jackson, was
whether a taking could occur when the property was not actually invaded or physically destroyed,
but rather the owner was deprived of its use and enjoyment due to some interference (like planes
flying overhead). In those instances, the Court said that the interference had to be “continuing and
substantial.” Id. at 862. In cases where there is an actual physical occupation or damage, however,
our courts have always couched this requirement in terms of permanency of injury or damage to the
property. See Pleasant View Utility Dist. v. Vradenburg, 545 S.W.2d 733 (Tenn. 1977); Knox
County v. Moncier, 455 S.W.2d 153 (Tenn. 1970); Ledbetter v. Beach, 421 S.W.2d 814 (Tenn.
1967); Barron v. City of Memphis, 80 S.W. 832 (Tenn. 1904); Betty v. Metropolitan Gov’t of
Nashville, 835 S.W.2d 1 (Tenn. Ct. App. 1992); Osborne Enterprises, Inc. v. City of Chattanooga,
561 S.W.2d 160 (Tenn. Ct. App. 1977).

               On the foregoing authority, we conclude that plaintiffs have presented sufficient facts


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to meet the threshold to take the issue of inverse condemnation to a jury. Plaintiffs’ evidence
showed a direct and substantial interference with the use and enjoyment of their property and damage
to its market value, and the interference was suffered only by plaintiffs and not the general public
as a whole. This evidence showed that the sewage backup into their homes caused a permanent loss
in market value, and thus their damage was not simply temporary or occasional in nature.

                  While defendant argues the sewage problem was only temporary and thus, a nuisance
and not a taking, and that the homes could be remediated, plaintiffs presented evidence that there had
been a permanent loss of market value. It is well settled that only a jury can decide whether the
“interference is substantial enough to constitute a taking”. Jackson, at 862. Accordingly, viewing
the facts in the light most favorable to plaintiffs, and allowing all reasonable inferences in their favor,
partial summary judgment was inappropriate on this issue, and we vacate the partial summary
judgment granted.1

                 Accordingly, the case is remanded for trial by jury. The Trial Court may conduct only
one trial by allowing the jury to take the issue of whether a taking has occurred, after the evidence
is concluded. If the jury finds that a taking has occurred, then it can assess damages accordingly.
If the jury finds no taking has occurred, then the Court can assess damages for plaintiffs’ nuisance
claim under the GTLA.2

              The Judgment of the Trial Court is vacated and the cause remanded to proceed in
accordance with this Opinion. The costs are assessed to Hallsdale-Powell Utility District.




                                                         _________________________
                                                         HERSCHEL PICKENS FRANKS , J.




        1
         Plaintiffs filed a motion in the Trial Court to amend and allege another sewage backup and
moved in this Court to consider pursuant to Rule 14, Tenn. R. App. P. In view of our holding, we
find it unnecessary to consider the amendment.
        2
            This court has previously held that “a landowner whose property has been adversely
affected by a county improvement has a choice of remedies against the county. If the adverse effect
amounts to a taking of the owner’s property, the proper remedy is inverse condemnation under the
eminent domain statutes. If, however, the effect on the landowner’s property is a nuisance, . . . the
landowner may sue the county for the nuisance.” Smith v. Maury County, 1999 Tenn. App. LEXIS
601 (Tenn. Ct. App. 1999)(citations omitted).

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