                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
       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
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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 time-
barred. 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.
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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
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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-
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       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 time-
       barred;

        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 injuries for 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
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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
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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
                                             -8-
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




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