               IN THE COURT OF APPEALS OF TENNESSEE
                          AT KNOXVILLE
                                  July 9, 2012 Session

      CHARLES RAYMOND LOVEDAY ET AL. v. BLOUNT COUNTY,
                    TENNESSEE ET AL.

                   Appeal from the Circuit Court for Blount County
                      No. L-17304     David R. Duggan, Judge


                 No. E2011-01713-COA-R3-CV - Filed July 24, 2012


Charles Raymond Loveday and his wife, Virginia Hope Loveday (collectively “the
Plaintiffs”), filed this action in January 2011 against Blount County and the Blount County
School Board (collectively “the Defendants”) to recover for flood damage to their property
allegedly caused by the construction of a new school next to the Plaintiffs’ property. The
school was built in 2007. The Plaintiffs allegedly sustained “permanent” damage in 2008,
2009 and 2010. The Defendants filed a motion to dismiss asserting that the action was
barred by the statute of limitations for a taking. The trial court granted the motion. The
Plaintiffs appeal. We affirm.

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

C HARLES D. S USANO, J R., J., delivered the opinion of the Court, in which H ERSCHEL P.
F RANKS, P.J., and D. M ICHAEL S WINEY, J., joined.

Robert W. White and Joe Nicholson, Maryville, Tennessee, for the appellants, Charles
Raymond Loveday and Virginia Hope Loveday.

Robert N. Goddard, Maryville, Tennessee, for the appellees, Blount County, Tennessee, and
Blount County School Board.
                                        OPINION

                                             I.

                                             A.

        The Plaintiffs own property located at 343 South Old Grey Ridge Road, Friendsville
(“the Property” or “the Plaintiffs’ Property”). They reside on the Property and have utilized
it “for grazing and feeding of livestock and for the growing of crops and livestock feed.”
According to the complaint,


              [o]n or about February, 2007, the Defendants began construction
              on the Union Grove Elementary School, located at 330 Old Grey
              Ridge Road, Friendsville, TN, 37737, a plot of land owned by
              one of the Defendants that is contiguous to [the] Plaintiffs’
              Property.

              On or . . . shortly after construction began, [the] Plaintiffs
              became aware of water runoff damage to their Property caused
              by the runoff from the Defendants’ property, including but not
              limited to the failure of the Defendants’ detention and runoff
              pond, which was constructed at the direction of [the]
              Defendants.

              As a result of the water damage, the Property is no longer usable
              for grazing and feeding of livestock or for growing crops and
              livestock feed.

              Such water damage is permanent in nature.

(Emphasis added.) The complaint further alleges that the flooding amounts to a taking of the
Property because the Plaintiffs “have been put in a position that they now own property that
they cannot utilize to its full economic value.” The complaint states that the “diminished
value” of the Property, i.e., “the difference between the market value of the Property prior
to the flooding and the current market value,” is $1,000,000.

       Alternatively, the complaint alleges that the new school is in a “defective condition”
that constitutes a nuisance. The complaint states that



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                   [the] Defendants’ construction project of a new school at the
                   location described above, resulting in the flooding of [the]
                   Plaintiffs’ contiguous Property, annoyed and disturbed [the]
                   Plaintiffs’ ability to freely use their Property and rendered its
                   ordinary use and physical occupation uncomfortable.

                   [The] Defendants received notice of the annoyance and
                   disturbance from the permanent flood damage to [the] Plaintiff’s
                   Property [in] 2008, 2009 and 2010 when [the] Plaintiffs reported
                   the annoyance and disturbance to representatives of the
                   Defendants in a meeting on several occasions.

                   At the meeting between the Plaintiffs and [the] Defendants’
                   representatives in 2009, [the] Plaintiffs were promised that the
                   Defendants would undertake complete remediation of the
                   flooding problem.

                   This annoyance and disturbance remains and is ongoing in
                   nature.

(Emphasis added.)

        Finally, the complaint alleges that the Defendants owed a duty to the Plaintiffs which
they breached by “causing and/or allowing water to flood [the] Plaintiffs’ Property . . .
resulting in permanent damage and a taking of [the] Plaintiffs’ Property.” (Emphasis added.)

       The Defendants filed a motion to dismiss “pursuant to Rule 12.02(6) of the Tennessee
Rules of Civil Procedure . . . based on the applicable statutes of limitations contained in
T.C.A. § 29-16-124 . . . .”1 The motion asserts that “when the Plaintiffs’ cause of action is
actually based in inverse condemnation there is no cause of action for common law nuisance
or negligence.” The motion asserts, alternatively, that a common law nuisance claim or a



        1
            This is the statute of limitations applicable to takings. The statute states, in pertinent part:

                   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 . . . .

Tenn. Code Ann. § 29-16-124 (2000).



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negligence claim is subject to the Governmental Tort Liability Act’s one-year statute of
limitations, and is therefore barred.

                                              B.

        The trial court granted the motion to dismiss. The order dismissing the case states,
in pertinent part, as follows:

              [i]n the present case, and by their own factual allegations as
              contained at paragraphs 31 and 40 of their complaint, [the]
              Plaintiffs knew as early as 2008 that the injury to their property
              was permanent. They claim to have put [the] Defendants on
              notice of permanent flood damage as early as 2008, and indeed
              claim to have delivered such notice to [the] Defendants in 2008,
              2009, and 2010. In addition, [the] Plaintiffs failed to file their
              complaint within one year of the time that [the] Defendants’
              representatives allegedly promised to remediate the problem,
              and yet failed to do so; despite the fact that [the] Plaintiffs knew
              that the injury to their property was permanent in nature.

              [The] Plaintiffs did not file their suit until January 27, 2011,
              more than one year after the time that they knew they had
              suffered a permanent injury to their property, and more than one
              year after their meeting with [the] Defendants’ representatives.
              Given that the key factor, in determining when the statute of
              limitations begins to run, is when the property owner knows that
              the injury to his property is a permanent injury rather than a
              temporary one, and given that [the] Plaintiffs had such
              knowledge in 2008 despite any alleged representations of [the]
              Defendants’ representatives in 2009, [the] Plaintiffs did not
              timely file their complaint.

              Accordingly, the Court finds that [the] Plaintiffs’ complaint,
              with respect to their inverse condemnation claim, is barred by
              the applicable statute of limitations.

              [The] Plaintiffs have also stated claims for common law
              nuisance and negligence. This Court has already found,
              however, that [the] Plaintiffs have stated a prima facie case for
              inverse condemnation. Once a court determines, under the facts

                                              -4-
       of a case, that a taking has occurred, a plaintiff is precluded
       from recovering on a temporary nuisance or negligence claim.
       Peterson v. Putnam County, Tennessee, [No. M2005-02222-
       COA-R3-CV, 2006 WL 3007516 (Tenn. Ct. App. M.S., filed
       Oct. 19, 2006)]; Large v. Greene County, Tennessee, [No.
       E2008-02764-COA-R3-CV, 2009 WL 5083482 (Tenn. Ct. App.,
       E.S., filed Dec. 28, 2009)].

       It is also noted that to the extent [the] Plaintiffs are seeking
       damages from [the] Defendants, even if their complaint could
       proceed, their claim for damages would be barred by the
       applicable one-year statute of limitations contained within the
       Tennessee Governmental Tort Liability Act, Tenn Code Ann. §
       29-20-305(B). (It is also noted that the statute of limitations
       found at Tenn. Code Ann. § 29-20-305(B) would not bar [the]
       Plaintiffs’ action for an injunction for abatement of the
       nuisance.)

       Nevertheless, because [the] Plaintiffs have stated a cause of
       action for inverse condemnation and are, therefore, precluded
       from pursuing a temporary nuisance or negligence claim against
       [the] Defendants, it is not necessary for this Court to apply the
       statute of limitations found within the Governmental Tort
       Liability Act.

       Accordingly, . . . [the] Defendants’ motion to dismiss is granted.
       ...

                                       II.

The issue as stated verbatim in the Plaintiffs’ brief is:

       Did the Trial Court err in granting [the Defendants’] Motion to
       Dismiss under Rule 12.02(6) of the Tennessee Rules of Civil
       Procedure by finding that the [Plaintiffs] were precluded from
       pursuing claims for nuisance and negligence, when they had
       alternatively pled a cause of action for inverse condemnation,
       when the cause of action for inverse condemnation has passed
       before the filing of the Complaint in this cause?



                                       -5-
                                             III.

       Our standard of review in this case is as articulated in Trau-Med of America, Inc. v.
Allstate Ins., 71 S.W.3d 691, 696-97 (Tenn. 2002):

              A Rule 12.02(6) motion to dismiss only seeks to determine
              whether the pleadings state a claim upon which relief can be
              granted. Such a motion challenges the legal sufficiency of the
              complaint, not the strength of the plaintiff’s proof, and,
              therefore, matters outside the pleadings should not be considered
              in deciding whether to grant the motion. See Bell ex rel. Snyder
              v. Icard, Merrill, Cullis, Timm, Furen & Ginsburg, P.A., 986
              S.W.2d 550, 554 (Tenn. 1999). In reviewing a motion to
              dismiss, the appellate court must construe the complaint
              liberally, presuming all factual allegations to be true and giving
              the plaintiff the benefit of all reasonable inferences. See Pursell
              v. First Am. Nat’l Bank, 937 S.W.2d 838, 840 (Tenn. 1996). It
              is well-settled that a complaint should not be dismissed for
              failure to state a claim unless it appears that the plaintiff can
              prove no set of facts in support of his or her claim that would
              warrant relief. See Doe v. Sundquist, 2 S.W.3d 919, 922 (Tenn.
              1999); Fuerst v. Methodist Hosp. S., 566 S.W.2d 847, 848
              (Tenn. 1978). Great specificity in the pleadings is ordinarily not
              required to survive a motion to dismiss; it is enough that the
              complaint set forth “a short and plain statement of the claim
              showing that the pleader is entitled to relief.” White v. Revco
              Disc. Drug Ctrs., Inc., 33 S.W.3d 713, 718 (Tenn. 2000) (citing
              Tenn. R. Civ. P. 8.01). We review the trial court's legal
              conclusions de novo without giving any presumption of
              correctness to those conclusions. Id.

                                             IV.

        The Plaintiffs concede that their complaint states a claim for inverse condemnation
and that the inverse condemnation claim is time-barred. They argue that the complaint also
states a claim for nuisance and negligence and that they have a right to plead and proceed on
the alternative theories even if their inverse condemnation claim is barred. They rely on
Tenn. R. Civ. P. 8.05(2) which states:

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              A party may set forth two (2) or more statements of a claim or
              defense alternatively or hypothetically. When two (2) or more
              statements are made in the alternative and one (1) of them if
              made independently would be sufficient, the pleading is not
              made insufficient by the insufficiency of one or more of the
              alternative statements. A party may also state as many separate
              claims or defenses as he or she has, regardless of consistency.

        The Plaintiffs argue that the trial court’s reliance upon Large v. Greene County,
Tennessee, No. E2008-02764-COA-R3-CV, 2009 WL 5083482 (Tenn. Ct. App. E.S., filed
Dec. 28, 2009) is misplaced because Large, unlike this case, was decided on a motion for
summary judgment. They argue that the essential facts were undisputed in Large whereas
in the present case the facts are still in dispute. The essence of the Plaintiffs’ argument, as
we understand it, is that some set of facts consistent with the complaint may entitle them to
relief under the nuisance claim, therefore the motion to dismiss should have been denied.

       We acknowledge that our opinion in Large involved a summary judgment, but that
distinction is not dispositive. In Large, we relied upon our earlier opinion in Peterson v.
Putnam County, No. M2005-02222-COA-R3-CV, 2006 WL 3007516 (Tenn. Ct. App. M.S.,
filed Oct. 19, 2006). Peterson was also a summary judgment case, but our opinion in that
case includes the following discussion of two Supreme Court cases that affirmed dismissals
of nuisance claims based on the determination in each case that the complaint alleged a
taking rather than a nuisance:

              The first issue with respect to the plaintiffs’ common law
              nuisance claim – i.e., whether the plaintiffs’ proper cause of
              action was a claim for inverse condemnation, rather than a
              temporary nuisance claim – has been addressed by the courts of
              this State on numerous occasions. . . . Where the adverse effect
              amounts to a “taking” of property by the government, the
              plaintiff’s proper remedy is one for inverse condemnation under
              the eminent domain statutes. See T.C.A. § 29-16-123, 124; see
              Pleasant View Util. Dist. v. Vrandenburg, 545 S.W.2d 733
              (Tenn. 1977); Monday v. Knox County, 417 S.W.2d 536 (Tenn.
              1967); Smith v. Maury County, No. 01A01-9804-CH-00207,
              1999 WL 675135 (Tenn. Ct. App. M.S., filed Sept. 1, 1999).

              In the case of Monday v. Knox County, the plaintiff filed a
              common law nuisance action against the county, alleging that
              the county’s construction of a nearby highway had caused

                                              -7-
              excessive amounts of water to collect on the plaintiff’s property.
              417 S.W.2d at 536. The plaintiff sought a mandatory injunction.
              Id. The trial court dismissed the plaintiffs’ suit, holding that the
              plaintiffs’ allegations amounted to a “taking” by the county and
              that the exclusive remedy was a claim under the eminent domain
              statutes. Id. The Supreme Court affirmed, stating that “there
              has been a taking of [the plaintiff’s] property for public use for
              which the remedy is reverse condemnation proceedings and [the
              county] would not be liable on the theory of a nuisance.” Id. at
              537. Notably, the plaintiff argued that the intrusion only
              amounted to a temporary nuisance because the condition causing
              the damages could be remedied by certain changes in the
              construction of the highway. Id. The Court rejected this
              argument by stating that “the Court has no authority to order
              such change in construction; for to do so would in effect be
              constructing public roads by judicial order.” Id.

              Similarly, in Pleasant View Util. Dist. v. Vrandenburg, the
              plaintiffs filed an action to enjoin a utility district from
              discharging thousands of gallons of waste water on their
              property. 545 S.W.2d at 734. The utility district moved to
              dismiss the plaintiffs’ suit, primarily arguing that its actions
              amounted to a “taking,” rather than a nuisance. Id. The utility
              district asserted that the plaintiffs’ proper remedy was an action
              for inverse condemnation, and furthermore, that any inverse
              condemnation action was now barred by the one-year statute of
              limitations for such actions. Id. at 734-35. The trial court
              granted the utility district’s motion to dismiss. Id. at 735. As
              noted by the Supreme Court, the Court of Appeals reversed and
              remanded, concluding that the plaintiffs’ suit was “ ‘not a suit
              for damages in reverse condemnation [but] is primarily an
              injunction suit praying for injunctive and general relief.’ ” Id.
              (bracketing in original). The Supreme Court reversed the Court
              of Appeals and affirmed the trial court’s judgment. Id. at
              736. . . .

Id. at *9 (emphasis added).

      One key fact that distinguishes a claim of temporary nuisance from a taking by a
governmental entity is damage to the property that is permanent in nature. Id. at 5-6. “Only

                                              -8-
when the injury is permanent in nature can there be a ‘taking’ within the contemplation of
the statute; and until there is a ‘taking’ the statute of limitations does not begin to run.” Id.
(quoting Knox County v. Moncier, 455 S.W.2d 153, 156 (Tenn. 1970)). Conversely, there
is a taking and the statute of limitations begins to run when the owner of the damaged
property is “charged with knowledge that the injury to his property [is] permanent.” Id.
(quoting Moncier, 455 S.W.2d at 156). One indication that the injury is permanent and
therefore a taking is damage to the market value of the property. Id. at 4 (citing Jackson v.
Metro Knoxville Airport Auth., 922 S.W.2d 860, 865 (Tenn. 1996)).

        We conclude that even if Peterson allows a plaintiff to maintain alternative pleadings
sounding in both nuisance and taking, it does not allow a plaintiff to proceed on a nuisance
theory when the allegations of the complaint allow only one conclusion, i.e., that he or she
knew that the damage to the property at issue is permanent. We further hold that the
allegations in the complaint in the present case only allow the conclusion that the damage to
the Plaintiffs’ property is permanent and that they knew it was permanent more than one year
before they filed the complaint in 2011. The complaint states that “ [o]n or shortly after
construction began [in 2007], [the] Plaintiffs became aware of water runoff damage to their
Property.” The complaint specifically states that the “water damage is permanent.” The
complaint states that the water damage reduced the value of the Plaintiffs’ Property by
$1,000,000. Even the “nuisance” count of the complaint refers to the damage as “permanent
flood damage” which was reported to the Defendants as such in a meeting between the
parties in 2009. The damages are alleged to be the result of a “defective condition” in the
construction. The “negligence” count repeats allegations of “permanent damage” and
diminished value that date back to the construction of the school. Allegedly, the Defendants
promised to undertake remediation in 2009, but that was more than one year before the filing
of the complaint. Even if there was additional damage in 2010, it is well established that the
statute of limitations begins to run when the injured party knows the nature of the injury; he
or she cannot wait until the full extent of the injury becomes apparent. See Peterson at *12.
We also note that the complaint contains not one allegation that the alleged nuisance is
“temporary.” The Plaintiffs point to the allegation that the “disturbance remains and is
ongoing.” That language is entirely consistent with the numerous allegations of permanent
damage characteristic of a taking. It follows that the trial court did not err in granting the
Defendants’ motion to dismiss.

                                               V.

       The judgment of the trial court is affirmed. Costs on appeal are taxed to the
appellants, Charles Raymond Loveday and Virginia Hope Loveday. This case is remanded,
pursuant to applicable law, for the collection of costs assessed by the trial court.



                                               -9-
       _______________________________
       CHARLES D. SUSANO, JR., JUDGE




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