                IN THE COURT OF APPEALS OF TENNESSEE
                             AT JACKSON
                                  May 13, 2014 Session

   WILSON R. VASCONEZ v. SHELBY COUNTY, TENNESSEE, ET AL.

                   Appeal from the Circuit Court for Shelby County
                   No. CT00429610     Robert Samual Weiss, Judge




                No. W2013-02870-COA-R3-CV           - Filed June 19, 2014



        Appellant Shelby County appeals a portion of the trial court’s judgment in favor of
Appellee, the purchaser of property formerly owned by Shelby County. After a bench trial,
the trial court awarded the Appellee property damages, prejudgment interest, and attorney’s
fees based on its finding that Shelby County committed inverse condemnation of the
Appellee’s property by failing to inform the Appellee of the condemnation proceedings
commenced by the City of Memphis. Because the City of Memphis, and not Shelby County,
was the condemnor of the property, we conclude that the trial court erred in awarding
damages against Shelby County on the theory of inverse condemnation, and further erred in
awarding attorney’s fees pursuant to the inverse condemnation statute. Accordingly, we
reverse the finding of inverse condemnation and the award of attorney’s fees against Shelby
County. Shelby County does not appeal the trial court’s award of property damages or
prejudgment interest. That award is, therefore, affirmed. Affirmed in part, reversed in part,
and remanded.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed in
                      Part; Reversed in Part; and Remanded


J. S TEVEN S TAFFORD, J., delivered the opinion of the Court, in which A LAN E. H IGHERS, P.J.,
W.S., and P AUL G. S UMMERS, S ENIOR J UDGE, joined.

Virginia P. Bozeman and Robert B. Rolwing, Memphis, Tennessee, for the appellant, Shelby
County, Tennessee.

Kevin A. Snider, Germantown, Tennessee, for the appellee, Wilson R. Vasconez.
                                  MEMORANDUM OPINION 1

       On or about July 11, 2008, Wilson R. Vasconez (“Plaintiff,” or “Appellee”) purchased
real property located at 681 W. Shelby Drive in Memphis (the “Property”). Mr. Vasconez
purchased the Property from Shelby County, Tennessee (“Shelby County,” or “Appellant”)
at a past-due tax sale; Mr. Vasconez paid $6,000.00 for the Property. At the time of
purchase, improvements on the Property included a shed and an approximately 1,100 square-
foot house, which was uninhabitable at that time. It is undisputed that, prior to Mr.
Vasconez’s purchase of the Property, the house had fallen into disrepair such that the City
of Memphis (the “City,” and together with Shelby County, “Defendants”) had initiated
condemnation proceedings. The City posted condemnation notices on the Property, and also
sent condemnation notices to Shelby County. Just prior to Mr. Vasconez’s purchase of the
Property, a condemnation hearing occurred, after which the City entered an order of
demolition for the Property on May 13, 2008. All notices for these actions were sent to
Shelby County, the owner of record at that time.

       Mr. Vasconez, who was unaware of the City’s condemnation efforts when he
purchased the Property from Shelby County, began making repairs to the house in November
or December of 2008. During this time, Mr. Vasconez lived at another location on Airview
Drive in Memphis. In the fall of 2009, Mr. Vasconez traveled to Chile to be with his wife
while she gave birth to their child. While Mr. Vasconez was out of the country, his Airview
Drive neighbor, Charles Watkins, allegedly checked his mail and would notify Mr. Vasconez
of any important mail he received. According to the complaint, Mr. Vasconez received no
notices regarding condemnation or demolition. However, on or about October 15, 2009, the
City proceeded with demolition, razing the shed, house, and foundation.

       On August 31, 2010, Mr. Vasconez filed a complaint against the Defendants, seeking
$50,000.00 in damages for alleged “gross malfeasance, gross negligence, and/or other actions
and/or omissions [by Defendants] in authorizing and subsequently destroying the [Property]


       1
           Rule 10 of the Rules of the Court of Appeals of Tennessee provides:

       This Court, with the concurrence of all judges participating in the case, may affirm, reverse
       or modify the actions of the trial court by memorandum opinion when a formal opinion
       would have no precedential value. When a case is decided by memorandum opinion it shall
       be designated “MEMORANDUM OPINION,” shall not be published, and shall not be cited
       or relied on for any reason in any unrelated case.


                                                   -2-
without notice to [Mr. Vasconez].” Mr. Vasconez averred that the Defendants’ actions
and/or omissions constituted an “unlawful taking, without notice, of the . . . [P]roperty.” On
November 16, 2010, Shelby County filed a motion to dismiss the complaint for failure to
state a claim upon which relief can be granted under Tennessee Rule of Civil Procedure 12,
or, in the alternative, for summary judgment. Therein, the City averred that Mr. Vasconez’s
complaint “made no claim of any negligent act . . . nor any act constituting a taking by Shelby
County . . . .” By the same document, Shelby County filed a cross-complaint against the City
for all damages that might be assessed against Shelby County by virtue of the condemnation
or demolition of the Property. On January 27, 2011, the City filed an answer to the
complaint, wherein it denied the material allegations made by Mr. Vasconez and raised the
affirmative defenses of contributory negligence on Mr. Vasconez’s part, and immunity under
the Tennessee Governmental Tort Liability Act, Tennessee Code Annotated Section 29-20-
101 et seq. The City further averred that it owed no legal duty to Mr. Vasconez.

       On February 16, 2011, Mr. Vasconez filed a response in opposition to Shelby
County’s motion to dismiss or, in the alternative, for summary judgment. A hearing on
Shelby County’s motion was held on April 8, 2011. By order of April 28, 2011, the trial
court denied Shelby County’s motion to dismiss and also denied its alternate motion for
summary judgment. The trial court specifically held that there was a dispute of fact as to
whether Shelby County owed any duty to Mr. Vasconez to forward demolition notices it
received from the City to him. The court further found that Mr. Vasconez should have been
advised “by some agency or official of any prior or pending notices of demolition issued by
any governmental agency on the [P]roperty being purchased, despite that information being
available on the [City’s] website.”

       On June 14, 2013, Shelby County filed its answer to the complaint.2 Therein, Shelby
County averred, inter alia, that Mr. Vasconez’s complaint “has not set forth an appropriate
claim for gross negligence, nor has he adhered to the procedure set forth in Tennessee’s
condemnation statutes for pursuing a claim for unlawful taking without notice.” Shelby
County further stated that Mr. Vasconez “may either institute an inverse condemnation action
in accordance with the statutory provisions . . . or sue for damages in trespass. . . .”
However, because Mr. Vasconez had allegedly done neither, Shelby County asserted that his
complaint failed to state a claim upon which relief could be granted. The court then set the
case for hearing on August 15, 2013.

       Following the August 15, 2013 hearing, the trial court entered an order on November


       2
         There is no explanation in the record for the time lapse between entry of the order denying
Shelby County’s motion and the filing of its answer. Furthermore, there is no explanation as to why the
hearing was set over two years after entry of the order denying Shelby County’s motion.

                                                  -3-
26, 2013. Therein, the court held, in relevant part, that:

              34. The Defendant, City of Memphis, performed its statutory
              duty of providing notice of its condemnation proceedings.

              35. At the time of the sale of the property to Plaintiff[,] the
              Defendant, Shelby County Government, had notice that the
              property was ordered to be demolished as [it] was the only party
              in interest in the property.

              36. While Plaintiff had offered to purchase the property[,]
              which predated the condemnation[,] the Defendant, Shelby
              County Government, was the only party that possessed all of the
              relevant information about the property.

              37. The Defendant, Shelby County Government, either
              purposefully or intentionally failed to provide the information of
              the condemned status of the property to the Plaintiff which
              constituted an inverse condemnation.

Based upon the foregoing findings, the trial court held that the City was 0% at fault as “the
uncontroverted proof was that [the City] provided notice to the property owner[,] which at
all [relevant] times . . . was Shelby County Government.” The court found that Shelby
County was 100% at fault, and awarded damages to Mr. Vasconez as follows:

              a. Property           $3,500.00      (which is based upon the
                                                   $6,000 purchase price of
                                                   land and building plus
                                                   improvements of $500 less
                                                   the value of the land still
                                                   owned by Plaintiff in the
                                                   amount of $3,000.00)

              b. Attorney Fees      $11,559.90     (pursuant to Plaintiff’s
                                                   attorney’s affidavit)

              c. Prejudgment Interest      $815.90 (pursuant to T.C.A. 29-17-
                                           813)

       Shelby County appeals. It raises two issues for review as stated in its brief:

                                             -4-
              1. Whether this Court should reverse the trial court’s finding
              that Appellant either purposefully or intentionally failed to
              provide information regarding the condemned status of 681 W.
              Shelby Drive to the Plaintiff, which constituted an inverse
              condemnation because inverse condemnation was not properly
              before the trial court, and the trial court’s findings of fact did not
              support its legal conclusion that Appellant’s acts were
              purposeful or intentional?

              2. Whether this Court should reverse the trial court’s award of
              attorney fees in the amount of $11,559.90, as a party can only
              recover attorney fees if authorized by contract or statute?

       Because this case was tried by the court, sitting without a jury, we review the trial
court’s findings of fact de novo upon the record with a presumption of correctness. Tenn. R.
App. P. 13(d). Unless the evidence preponderates against the trial court’s findings, we must
affirm, absent error of law. Id. In order for the evidence to preponderate against the trial
court’s findings, it must support another finding of fact with greater convincing effect.
Walker v. Sidney Gilreath & Assocs., 40 S.W.3d 66, 71 (Tenn. Ct. App. 2000).

                                   Inverse Condemnation

       In its first issue, Shelby County asserts that the trial court’s award of damages on
the ground of inverse condemnation of the Property is flawed for at least two reasons. First,
Shelby County asserts that Mr. Vasconez’s complaint did not allege an inverse
condemnation, but rather alleged only negligence and taking. Second, Shelby County asserts
that Mr. Vasconez presented no proof, and the trial court did not find that Shelby County
performed a purposeful or intentional act that resulted in the taking of the Property for public
good, which finding is required in an action for inverse condemnation.

        The Tennessee Supreme Court has explained that Article I, § 21 of the Tennessee
Constitution recognizes the government’s right of eminent domain but requires compensation
when private property is taken for public use. Edwards v. Hallsdale-Powell Util. Dist. Knox
Cnty., Tenn., 115 S.W.3d 461, 464 (Tenn. 2003). The General Assembly has implemented
this provision by enacting corresponding eminent domain and inverse condemnation statutes.
See Tenn. Code Ann. §§ 29-16-101 et seq. The Edwards Court described inverse
condemnation as follows:

              “Inverse condemnation” is the popular description for a cause of
              action brought by a property owner to recover the value of real

                                               -5-
              property that has been taken for public use by a governmental
              defendant even though no formal condemnation proceedings
              under the government’s power of eminent domain have been
              instituted. See Johnson v. City of Greeneville, 222 Tenn. 260,
              435 S.W.2d 476, 478 (Tenn. 1968).

 Edwards, 115 S.W.3d at 464–65. Thus, one of the requirements for an inverse
condemnation claim is a taking for public use. A property owner’s right of action for inverse
condemnation is set out in Tennessee Code Annotated § 29-16-123, which by its terms
applies in situations where an entity “has actually taken possession” of the owner’s land. The
meaning of “taking” in the context of an inverse condemnation action has been discussed in
several cases.

              A “taking” of real property occurs when a governmental
              defendant with the power of eminent domain performs an
              authorized action that “destroys, interrupts, or interferes with the
              common and necessary use of real property of another.”
              Pleasant View Util. Dist. v. Vradenburg, 545 S.W.2d 733, 735
              (Tenn. 1977).

Edwards, 115 S.W.3d at 465.

        In the first instance, Shelby County did not take or condemn this Property. The City
of Memphis did. Accordingly, Shelby County cannot be held liable on theories of inverse
condemnation, taking, or failure to comply with the statutory requirements for either of these
actions. Rather, only the City, as the condemning party, may be held liable on an inverse
condemnation theory. The trial court found the City to be 0% at fault in this case, and
further held that the City had “performed its statutory duty of providing notice of its
condemnation proceedings.” These findings have not been appealed, and so are conclusive.
Accordingly, we affirm those findings. Therefore, for purposes of this appeal, we assume
that the City did, in fact, follow the statutory guidelines by providing sufficient and proper
notice of condemnation to the owner of record, Shelby County. The question, then, is
whether Shelby County had a duty to inform Mr. Vasconez of the pending condemnation
proceedings prior to selling the Property. As noted below, that question is not specifically
answered in the trial court’s order.

      Certainly Mr. Vasconez’s complaint alleges negligence by act and/or omission against
Shelby County. Although Mr. Vasconez avers that the “actions and/or omissions on the part
of Defendants amount to an unlawful taking,” he also avers that the “unlawful taking” was
made “without notice.” Although the unlawful taking may only be averred against the City,

                                              -6-
as the sole condemnor of the Property, the failure to provide notice may lie against either of
the Defendants. In other words, the trial court could have found that the City, as the
condemnor, violated the statutory notice requirements for inverse condemnation or taking.
However, as set out above, that was not the trial court’s finding. Nonetheless, because
Shelby County was not the condemnor of the Property, any finding of failure to provide
notice against Shelby County would sound in negligence and not in violation of the notice
requirements found in the inverse condemnation and taking statutes. These statutes simply
do not apply to Shelby County, which did not take or condemn the Property.

        The trial court specifically held that Shelby County was “the only party that possessed
all of the relevant information about the property,” and that it “either purposefully or
intentionally failed to provide the information of the condemned status of the property to the
Plaintiff.” For the reasons discussed above, and specifically because the inverse
condemnation statute is not applicable to Shelby County, the trial court erroneously
concluded that Shelby County’s failure to inform Mr. Vasconez of the condemned status of
the Property constituted an “inverse condemnation.” Because there can be no finding of
inverse condemnation by Shelby County, which had no part in condemning the Property, we
reverse this finding.

        Furthermore, because the trial court apparently awarded Mr. Vasconez his attorney’s
fees under the inverse condemnation statute, and specifically Tennessee Code Annotated
Section 29-16-123(b),3 we must also reverse the award of attorney’s fees in this case. Under
the American rule, each party is responsible for that party’s own attorney fees, and a party
in a civil action may recover attorney fees only if such recovery is provided for by statute or
by a contract between the parties. Taylor v. Fezell, 158 S.W.3d 352, 359 (Tenn. 2005); Fifth
Third Co. v. Mooreland Estates Homeowners Ass’n, 639 S.W.2d 292, 298 (Tenn. Ct. App.
1982). In this case, the trial court’s finding of inverse condemnation appears to provide the
only basis for the award of attorney’s fees. The parties cite no other statute or contract from
which an award of attorney’s fees can arise. Because we have reversed the trial court’s
finding of inverse condemnation, we must also reverse the award of attorney’s fees.

        We note that the trial court also awarded property damages and prejudgment interest
to the Appellee in addition to the award of attorney’s fees. Inferentially, this award was based
on the trial court’s finding of inverse condemnation, which has been reversed by this Court.
Typically, this award would also require reversal or vacatur for reconsideration under the


        3
           The statute provides that, “as a part of such judgment or settlement [for inverse condemnation
 the court may award] such sum as will in the opinion of the court . . . reimburse such plaintiff for reasonable
costs, disbursements and expenses, including reasonable attorney, appraisal, and engineering fees, actually
incurred because of such proceeding.”

                                                      -7-
remaining theory of relief asserted by the Appellee. In this case, however, Shelby County
expressly concedes the Appellees’ entitlement to these damages. Specifically, in its brief,
Shelby County states that: “[Shelby County] does not appeal the award of property damage
in the amount of $3,500.00 or the prejudgment interest in the amount of $815.90, as Appellee
still would have been entitled to those damages had he instead prevailed on his common law
gross negligence claim.” Generally, our review will only extend to those issues presented for
review. See Tenn. R. App. P. 13(b). Because Shelby County specifically waives any
argument as to these damages, we decline to consider the correctness of the award of
property damages and prejudgment interest. The trial court’s award of property damages and
prejudgment interest is, therefore, affirmed.

        For the foregoing reasons, we affirm the trial court’s order concerning the City’s
liability. Because the inverse condemnation statute does not apply to Shelby County, we
reverse the finding of liability against Shelby County on that theory, and the award of
attorney’s fees under the inverse condemnation statute. The judgment of the trial court is
affirmed in all other respects. Costs of the appeal are assessed one-half to the Appellant,
Shelby County, Tennessee, and its surety, and one-half to the Appellee, Wilson R. Vasconez,
for all of which execution may issue if necessary.




                                                    ________________________________
                                                   J. STEVEN STAFFORD, JUDGE




                                             -8-
