                                                                                            08/16/2019
                IN THE COURT OF APPEALS OF TENNESSEE
                             AT JACKSON
                                  June 18, 2019 Session

   DANIEL HARVEY, ET AL. v. SHELBY COUNTY TENNESSEE, ET AL.

                   Appeal from the Circuit Court for Shelby County
                     No. CT-002662-15 Rhynette N. Hurd, Judge
                      ___________________________________

                            No. W2018-01747-COA-R3-CV
                        ___________________________________

Plaintiffs filed a complaint against multiple governmental entities for flood damages to
their property. Each defendant filed a pre-trial motion to dismiss and/or a motion for
summary judgment. The trial court granted judgment on the pleadings and summary
judgment, finding that Plaintiffs’ claims were barred by the applicable statute of
limitations. Plaintiffs appeal. For the reasons stated herein, the decision of the trial court
is affirmed in part, vacated in part, and remanded for further proceedings consistent with
this opinion.

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

CARMA DENNIS MCGEE, J., delivered the opinion of the court, in which J. STEVEN
STAFFORD, P.J., W.S., and THOMAS R. FRIERSON, II, J., joined.

Ryan Simatic, Minneapolis, Minnesota, and Edward Brading, Johnson City, Tennessee,
for the appellants, Daniel Harvey and Portia Harvey.

Robert B. Rolwing, Memphis, Tennessee, for the appellee, Shelby County, Tennessee.

Randall D. Noel and Gadson W. Perry, Memphis, Tennessee, for the appellee, City of
Memphis.

David L. Bearman and Ryan A. Strain, Memphis, Tennessee, for the appellee, Memphis
Light, Gas, and Water Division.

Herbert H. Slatery, III, Attorney General and Reporter; Andrée S. Blumstein, Solicitor
General; James R. Newsom, III, Special Counsel; and Matthew Dowty, Assistant
Attorney General, for the appellee, State of Tennessee.
                                             OPINION

                             I.      FACTS & PROCEDURAL HISTORY1

        Daniel Harvey and Portia Harvey (“Plaintiffs”) own property east of Interstate 240
in Memphis, Tennessee. Their property, described as Lot 2 in Section B of the
Sweetbriar Woods Subdivision, borders the Tennessee Department of Transportation
(“TDOT”) right-of-way for the interstate. Interstate 240 was originally constructed in the
1960s. As part of its original construction, an 8 feet by 6 feet concrete box culvert was
installed for drainage. The culvert runs underneath the surface of the interstate and
empties into a drainage ditch behind what is now Plaintiffs’ property.

        In the 1970s, the subdivision was developed along with its own drainage system.
As part of the subdivision’s drainage system, an 8 feet by 3 feet concrete box culvert was
installed to “receive drainage exiting the I-240 right-of-way.” The 8 feet by 3 feet culvert
was not large enough to accommodate peak water flows running underneath the
interstate, causing Lot 2 to flood. In the 1980s, the City of Memphis installed reinforced
concrete pipe running parallel to the 8 feet by 3 feet box culvert, for “additional
conveyance capacity” after storm events.

       In 1997, Plaintiffs began to reside on Lot 2. Nine years later, TDOT entered into
an agreement with an engineering and design firm for the development of plans for
widening of the interstate. During this time, TDOT had knowledge of the preexisting
deficiencies in the subdivision’s drainage system. TDOT investigated the possibility of
constructing a detention basin on the west side of Interstate 240 to ensure improvements
made to the interstate would not worsen the flooding in the subdivision.

        Memphis Light, Gas, and Water Division (“MLGW”) operates and maintains
electrical transmission towers and gas lines on the property west of and adjacent to the
TDOT right-of-way, which is where the proposed detention basin was to be constructed.
Prior to commencement of roadwork, TDOT and the engineering firm worked to design a
detention basin that would comply with the requirements of MLGW. The engineering
firm conducted a pre-construction study, which concluded that the proposed detention
basin would be sufficient to offset any additional runoff resulting from the interstate
modifications, but would not be large enough to completely alleviate the flooding in the
subdivision. TDOT reviewed the study and included a detention basin in its final plan,
which MLGW approved.

       1
          The facts are largely taken from the complaint and statement of undisputed facts contained in
the record, to provide a background and give context to the issues raised on appeal. Many of the facts
were undisputed for purposes of the State’s “Motion for Summary Judgment.” However, these facts
should not be considered as conclusively established on remand, for purposes of the additional
proceedings involving any other defendants.
                                                 -2-
       On August 18, 2009, Plaintiffs’ home was “severely” flooded for the first time,
after Memphis experienced heavy rain. According to Plaintiffs, the flooding caused
extensive damage to their home. Plaintiffs denied experiencing any flooding from 1997
to 2009. Plaintiffs attributed the flooding to the Interstate 240 construction work, which
they allege began in 2008.2 According to Plaintiffs, they gave notice of the 2009 flooding
to “the City, County, State, and MLGW.” Construction of the detention basin was
completed in April 2012.

       Plaintiffs’ property severely flooded for a second time during a period of heavy
rain on January 30, 2013, again causing extensive damage. Plaintiffs reported the flood
to the State (and possibly to the City, County, and MLGW). They expressed concerns
that the construction on Interstate 240 contributed to the flooding. TDOT did not take
any further action to address the flooding in the area or assure Plaintiffs that such action
would or could be taken.

    In 2013, the same engineering firm that conducted the pre-construction study for
TDOT prepared a report for the City, which stated:

        Due to historic and continued flooding events which at times resulted in
        flood damage to the home at . . . (Lot 2, Sweetbriar Wood Subdivision,
        Section B), the City engaged Fisher & Arnold, Inc, to perform a storm
        water analysis to determine the potential for improvements to an existing
        detention basin located within the MLG&W Transmission Right-of-Way
        adjacent to and west of the I-240 right-of-way in order to maximize
        downstream reductions in the resulting peak flows. In hopes of mitigating
        the flooding issues in the Sweetbriar Woods Subdivision, Fisher & Arnold,
        Inc. was tasked with the following scope . . . .

       The report further stated that “despite the 1980s modification . . . Lot 2 has
continued to experience flooding.” It indicated that the 2012 detention basin constructed
by TDOT “was designed to address increased runoff from the expansion of I-240, but
was not designed to address the historic flooding” in the subdivision. The primary
consideration of the 2013 report was to explore options for “expanding and/or modifying
the detention basin to further restrict the outflow and perhaps mitigate or at least reduce
the degree of flooding,” which occurs in the subdivision. The engineering firm provided
two possible options to “significantly reduce the peak flows” of water in the subdivision.
However, there is nothing in the record to indicate that either option was ever
implemented. Plaintiffs concede, in their brief, that the 2013 Fisher & Arnold report was

        2
            The State of Tennessee’s “Statement of Undisputed Facts” indicates that roadwork began in
2011.

                                                 -3-
delivered to them on August 12, 2013.

       Plaintiffs’ property flooded for a third time, during a period of heavy rain, on June
29, 2014. Again, the flood caused extensive damage to the home. Plaintiffs again gave
the State (and possibly the City, County, and MLGW) notice of the flooding. In July
2014, Plaintiffs had email communications with TDOT, reiterating their request for relief.
TDOT officials responded, stating that their project “has not increased drainage” in the
area. To the contrary, the TDOT official explained that “the detention basin operated to
reduce the peak volume of water flowing into the drainage channels behind Plaintiffs’
property from pre-construction levels.” TDOT did not take any further action to address
flooding in the subdivision and never assured Plaintiffs or other residents of the
subdivision that such action would be taken.

       On October 20, 2014, a neighborhood meeting was held to discuss the flooding
with various governmental representatives. The aforementioned TDOT official attended
the meeting, but he did not make any representation that TDOT would or could take
further action to address flooding in the subdivision. According to Plaintiffs, despite the
“significant drainage and flooding problems . . . Defendants failed to implement any
actions to remedy the problems.” In 2014 and 2015, Plaintiffs received emails from the
office of Tennessee House District 83 Representative Mark White regarding their
property.3 The emails detailed steps being taken by the City and stated that efforts were
being made to find a solution to improve the flooding.

       On June 23, 2015, Plaintiffs filed a complaint in the trial court against the City,
Shelby County, and MLGW. They asserted claims for (1) violation of Tenn. Code Ann.
§ 7-31-112, (2) nuisance, (3) trespass, (4) negligence, and (5) inverse condemnation.
Plaintiffs alleged that they were entitled to damages as the flooding from the interstate
project had “significantly” reduced the market value of the property. Shortly thereafter,
the County filed a “Motion to Dismiss or in the Alternative for Summary Judgment.” On
June 9, 2016, an order was entered granting the County’s motion. The trial court
concluded that the County was an improper party and that Plaintiffs’ tort claims against
the County were time-barred by the statute of limitations.4

       On October 16, 2015, Plaintiffs filed notice of claims against the State in the
Tennessee Division of Claims Administration, which were later transferred to the
Tennessee Claims Commission. Plaintiffs then filed a complaint for damages against the
State in the Claims Commission on February 12, 2016. Plaintiffs alleged essentially the
same facts that they asserted in their complaint filed in the trial court. However, they

       3
           The emails are from the “Legislative Assistant to Representative Mark White.”

       4
         Plaintiffs do not challenge the dismissal of the County on the ground that it was an improper
party. Therefore, the dismissal of the County is not at issue on appeal.
                                                  -4-
only made claims against the State for (1) nuisance, (2) negligence, and (3) inverse
condemnation. In mid-2017, these claims were transferred to and consolidated with their
claims in the trial court.5

       On March 16, 2018, the City and MLGW filed motions for judgment on the
pleadings. The State filed a motion for summary judgment on April 11, 2018, supporting
it with a memorandum of law, affidavits, a statement of undisputed facts, and other
exhibits. Plaintiffs responded to the City, MLGW, and the State’s motions; however,
they failed to respond to the statement of undisputed facts submitted by the State.6

       Following arguments on the motions, the trial court granted the City and MLGW’s
motions, as well as the State’s. As to the City and MLGW, the court held that Plaintiffs’
claims for trespass, negligence, nuisance, and inverse condemnation accrued no later than
2013 and were barred by the one-year statute of limitations. Regarding the State’s
motion, the court found:

                . . . . [T]he undisputed facts show[ed] Plaintiffs knew or reasonably
        should have known of a permanent injury to their property in January 2013.
        Because Plaintiffs initiated this suit against the State more than one year
        later, on October 16, 2015, their claims against the State are time-barred
        under Tenn. Code Ann. § 29-16-124, and the State is entitled to judgment
        as a matter of law.

      The trial court’s final orders were entered on August 15, 2018, and August 23,
2018. Plaintiffs timely appealed.

                                        II.      ISSUES PRESENTED

      Plaintiffs present two issues for our review in an unclear question-and-answer
format. We have determined the dispositive issues are:

    1. Whether the trial court erred in dismissing Plaintiffs’ case on motions for
       judgment on the pleadings and summary judgment, after it found that the claims
       were barred by the one-year statute of limitations; and,

    2. Whether the defendants were equitably estopped from asserting a statute of

        5
           An order transferring the claims to the trial court was filed with the Claims Commission. The
date of filing is not legible, but the certificate of service on said order bears a date of August 10, 2017. A
“Consent Order Accepting Transfer and Consolidating Cases” was filed with the trial court on September
8, 2017.
         6
            “It is well-settled that, when a non-moving party fails to respond to the moving party’s
statement of undisputed facts, the court may consider the facts admitted.” Cardiac Anesthesia Servs.,
PLLC v. Jones, 385 S.W.3d 530, 539 (Tenn. Ct. App. 2012) (citations omitted).
                                                    -5-
       limitations defense.

For the following reasons, the decision of the circuit court is affirmed in part, vacated in
part, and remanded for further proceedings.

                                    III.   DISCUSSION

            A.   The City and MLGW’s Motion for Judgment on the Pleadings

       Because this case involves issues which were adjudicated by both summary
judgment and judgment on the pleadings, we must first examine the applicable standards
of review. The trial court disposed of the claims against the City and MLGW by granting
judgment on the pleadings. “In reviewing a trial court’s ruling on a motion for judgment
on the pleadings, we must accept as true ‘all well-pleaded facts and all reasonable
inferences drawn therefrom.’” Cherokee Country Club, Inc. v. City of Knoxville, 152
S.W.3d 466, 470 (Tenn. 2004) (quoting McClenahan v. Cooley, 806 S.W.2d 767, 769
(Tenn. 1991)). “A motion for judgment on the pleadings involves the consideration of
nothing other than what its title suggests; the motion requests that a court grant judgment
based on the pleadings alone.” Sakaan v. Fedex Corp., Inc., No. W2016-00648-COA-R3-
CV, 2016 WL 7396050, at *5 (Tenn. Ct. App. Dec. 21, 2016).

      In the event that the trial court considers matters other than the pleadings, the
motion must be treated by the court as a motion for summary judgment. As stated in
Tenn. R. Civ. P. 12.03:

              . . . If, on a motion for judgment on the pleadings, matters outside
       the pleadings are presented to and not excluded by the court, the motion
       shall be treated as one for summary judgment and disposed of as provided
       in Rule 56, and all parties shall be given reasonable opportunity to present
       all material made pertinent to such a motion by Rule 56 . . . .

(emphasis added).

       Here, various exhibits were attached to the complaint, including the engineering
study, several emails, and pictures. Those attached materials were not excluded, and to
the contrary, the court expressly stated that its decision was based on “the entire record.”
See, e.g., Mann v. Alpha Tau Omega Fraternity, 380 S.W.3d 42, 46 (Tenn. 2012) (“In
granting the motion, the trial court based its decision on ‘the arguments of counsel in
open court and the entire record in this cause.’ By considering matters outside the
pleadings, [] the trial court converted the motion to dismiss for failure to state a claim
into a motion for summary judgment.”); Tennessee Firearms Ass'n v. Metro. Gov't of
Nashville & Davidson Cty., No. M2016-01782-COA-R3-CV, 2017 WL 2590209, at *3
(Tenn. Ct. App. June 15, 2017) (reviewing the trial court’s decision as a grant of
                                           -6-
summary judgment when the trial court stated that it granted the motion to dismiss based
on “the entire record in this matter”).

       We recognize that there are exceptions to the general rule that a court must convert
a motion for judgment on the pleadings to a motion for summary judgment if the court
considers evidence outside the pleadings. In Haynes v. Bass, No. W2015-01192-COA-
R3-CV, 2016 WL 3351365, at *4–5 (Tenn. Ct. App. June 9, 2016), this Court provided a
helpful summary of the relevant exceptions to this general rule and provided several
examples:

             There are exceptions to the general rule, cited above, that a court
      must convert a Tenn. R. Civ. P 12.02(6) motion to a motion for summary
      judgment if the court considers evidence outside the pleadings. In Indiana
      State District Counsel of Laborers v. Brukardt, No. M2007-02271-COA-
      R3-CV, 2009 WL 426237 (Tenn. Ct. App. Feb. 19, 2009), the court
      adopted the following language:

                    Numerous cases ... have allowed consideration of
             matters incorporated by reference or integral to the claim,
             items subject to judicial notice, matters of public record,
             orders, items appearing in the record of the case, and exhibits
             attached to the complaint whose authenticity is unquestioned;
             these items may be considered by the district judge without
             converting the motion into one for summary judgment.

      Brukardt, 2009 WL 426237, at *8 (quoting Wright and Miller, Federal
      Practice and Procedure, 1357, p. 376 (3d ed. 2004)). Applying the general
      rule and the exceptions, the Brukardt court determined that the trial court
      properly considered a proxy statement and a certificate of incorporation
      when ruling on a motion to dismiss because Tennessee law allowed for
      judicial notice of such public records. Id. at *9. The court went on to
      conclude that the trial court erred in considering newspaper articles and
      press releases as these materials were not subject to judicial notice. Id. The
      court in Western Express, Inc. v. Brentwood Services, Inc., No. M2008-
      02227-COA-R3-CV, 2009 WL 3448747, at *3 (Tenn. Ct. App. Oct. 26,
      2009), relied upon the rule stated in Brukardt to hold that the trial court
      properly considered a settlement agreement because it was a public record.
      More recently, in Singer v. Highway 46 Properties, LLC, No. M2013–
      02682-COA-R3-CV, 2014 WL 4725247, at *3 (Tenn.Ct.App. Sept. 23,
      2014), the court applied the same exceptions in holding that the trial court
      did not err in considering certain public records (a quit claim deed and an
      LLC's articles of incorporation and annual reports) on a motion to dismiss.
      In Cochran v. City of Memphis, No. W2012-01346-COA-R3-CV, 2013 WL
                                          -7-
       1122803, at *2 (Tenn. Ct. App. Mar. 19, 2013), the City's motion to dismiss
       the plaintiffs’ second complaint included the following exhibits: the
       plaintiffs’ first complaint, an order dismissing the cause for lack of
       prosecution, and an order denying the plaintiffs' motion to set aside the
       order of dismissal. Citing Brukardt, the court determined that the City's
       motion should not be converted to a motion for summary judgment. Id. To
       the extent that the trial court in the present case considered the orders from
       the Arkansas divorce provided as attachments to the defendants' motions,
       the trial court did not err in failing to convert the motions to dismiss/for
       judgment on the pleadings to motions for summary judgment. Such
       materials fall within the exceptions to the general rule cited in Brukardt.

Id. at *5-6.


        Again, Plaintiffs attached multiple exhibits to their complaint, none of which the
trial court explicitly or implicitly excluded. The order states in pertinent part:

              . . . . In response to Plaintiffs’ concerns, the City commissioned a
       study by engineering firm Fisher & Arnold, Inc. The study, completed in
       August 2013, concluded that significant modifications to the drainage could
       lessen, but would not eliminate, the flooding experienced by Plaintiffs.

              Based on the arguments of counsel and the entire record . . .
       Plaintiffs[’] . . . claims should therefore be dismissed under Tennessee Rule
       of Civil Procedure 12.03.

               ....

               . . . . Based on the allegations in their Complaint, Plaintiffs knew or
       reasonably should have known that the alleged injury to their property was
       permanent in 2009, when the property experienced the first flooding
       incident, which Plaintiffs reported to Defendants, and in no event later than
       2013, either at the time of the second flooding incident in January 2013 or
       upon completion of the Fisher & Arnold study in August 2013. Because
       the inverse condemnation claim accrued no later than 2013, the statute of
       limitations expired no later than 2014, and, therefore, Plaintiffs’ claim, filed
       in 2015, is untimely.

(emphasis added) (citations omitted).

      A motion for judgment on the pleadings, as we have stated, is considered based
upon the pleadings alone. In this case, we find that the trial court went beyond the scope
                                          -8-
of review allowed. The standard set forth by this court in Brukardt plainly excludes from
consideration some, if not all, of the exhibits attached to Plaintiffs’ complaint. The trial
court made no findings as to whether these exhibits were part of the record, but stated
that the decision was based upon the “entire record” and directly cited to at least one
exhibit. Therefore, the court was required to convert the motion for judgment on the
pleadings to a motion for summary judgment.

       This Court has addressed the proper procedure to follow upon a finding that a
motion for judgment on the pleadings should have been treated as a motion for summary
judgment. Even if we were to interpret the order as a sua sponte granting of summary
judgment, both parties should have been “afforded a ‘reasonable opportunity’ to present
memoranda in support of or in opposition to a motion for summary judgment along with
statements of undisputed material fact and any other supporting documentation.” In re
Conservatorship of Starnes, No. W2013-02614-COA-R3-CV, 2014 WL 6977831, at *8
(Tenn. Ct. App., filed Dec. 10, 2014) (quoting Int’l Merch. Servs., Inc. v. ATM Cent.,
LLC, No. W2003-00849-COA-R3-CV, 2004 WL 170392, at *5 (Tenn. Ct. App. Jan. 27,
2004)). It is only after the court has obtained and reviewed such information that it can
make an “intelligent ruling” as to whether the disputes of material fact exist and whether
either of the parties are entitled to summary judgment as a matter of law. Id.

       Based on these findings, the motions for judgment on the pleadings should have
been treated as motions for summary judgment and disposed of according to Rule 56.
Accordingly, we vacate the judgment of the trial court granting the City and MLGW’s
motions for judgment on the pleadings. We remand the case to the trial court for
consideration of this motion pursuant to the standards of Rule 56, and to give all parties a
reasonable opportunity to present all material pertinent thereto. Because we have
determined that the decision of the trial court should be vacated and remanded, any
remaining issues regarding the City and MLGW are pretermitted.

                        B.    State’s Motion for Summary Judgment

        We next move to the issue regarding the claims against the State. The claims
against the State were decided on a motion for summary judgment. Pursuant to the Rules
of Civil Procedure, 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) (citations omitted). “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.” Id. (citations omitted).

                                           -9-
       “The moving party has the ultimate burden of persuading the court that there are
no genuine issues of material fact . . . .” Martin v. Norfolk S. Ry. Co., 271 S.W.3d 76, 83
(Tenn. 2008) (citing Byrd v. Hall, 847 S.W.2d 208, 215 (Tenn. 1993)). The party moving
for summary judgment may satisfy its burden of production “either (1) by affirmatively
negating an essential element of the nonmoving party’s claim or (2) by demonstrating
that the nonmoving party’s evidence at the summary judgment stage is insufficient to
establish the nonmoving party’s claim or defense.” Rye, 477 S.W.3d at 264. We must
view all the evidence in the light most favorable to the nonmoving party and resolve all
factual inferences in the nonmoving party’s favor. Martin, 271 S.W.3d at 84 (citations
omitted).

        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. Id at 83. However, once the burden shifts to the nonmoving party, the
nonmoving party “must do more than simply show that there is some metaphysical doubt
as to the material facts.” Rye, 477 S.W.3d at 251 (citations omitted). “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.” Id at 265. “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.” Richardson v. Trenton Special School District,
W2015-01608-COA-R3-CV, 2016 WL 3595563 at *5 (Tenn. Ct. App. June 27, 2016)
(citing White v. Lawrence, 975 S.W.2d 525, 529-30 (Tenn. 1998)).

                         1.    Inverse Condemnation and Temporary Nuisance

       Plaintiffs argue that they have asserted a timely cause of action for inverse
condemnation, or in the alternative, temporary nuisance.7 They assert the trial court erred
in granting the State’s motion for summary judgment, as there were genuine issues of
material fact in dispute regarding the State’s defenses based on the statute of limitations.
Often, the facts material to statute of limitations defenses are undisputed and well suited
for summary judgment. Beckwith v. LBMC, P.C., No.M2017-00972-COA-R3-CV, 2019
WL 1306201, at *2 (Tenn. Ct. App. Mar. 21, 2019) (citing Cherry v. Williams, 36
S.W.3d 78, 83 (Tenn. Ct. App. 2000)). “In considering a statute of limitations defense,
we examine three interrelated elements: ‘the length of the limitations period, the accrual
of the cause of action, and the applicability of any relevant tolling doctrines.’” Id.
(quoting Redwing v. Catholic Bishop for Diocese of Memphis, 363 S.W.3d 436, 456
(Tenn. 2012)). Whether a claim is barred by an applicable statute of limitations is a

        7
           Plaintiffs raised additional claims in their complaint, which were addressed and dismissed by
the trial court. On appeal, Plaintiffs only assert arguments regarding inverse condemnation and temporary
nuisance.
                                                 - 10 -
question of law. Brown v. Erachem Comilog, Inc., 231 S.W.3d 918, 921 (Tenn. 2007)
(citing Owens v. Truckstops of Am., 915 S.W.2d 420, 424 (Tenn. 1996)).

       Turning to Plaintiffs’ complaint, the relief they request derives from claims for
temporary nuisance and inverse condemnation. Therefore, our analysis begins by
distinguishing the two causes of action. The State argues that a claim for inverse
condemnation is Plaintiffs’ exclusive remedy. In explaining the differences between
temporary nuisance and inverse condemnation, we have stated:

              . . . . [W]hether 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. A nuisance
       has been defined as “anything which annoys or disturbs the free use of
       one’s property, or which renders its ordinary use or physical occupation
       uncomfortable.” Pate v. City of Martin, 614 S.W.2d 46, 47 (Tenn. 1981). A
       temporary nuisance is one that “can be corrected by the expenditure of
       labor or money.” Id. at 48. The determination that a “taking has occurred [,
       as opposed to a nuisance,] depends on the facts of each case, specifically
       the nature, extent and duration of the intrusion.” Burchfield v. State of
       Tennessee, 774 S.W.2d 178, 183 (Tenn. Ct. App. 1988). Where the adverse
       effect amounts to a “taking” of property by the government, . . . [the]
       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. 01-A-01-9804-CH-
       00207, 1999 WL 675135 (Tenn. Ct. App. M.S., filed September 1, 1999).

Peterson v. Putnam Cty., No. M2005-02222-COA-R3-CV, 2006 WL 3007516, at *9
(Tenn. Ct. App. Oct. 19, 2006).

        A 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.” Loveday v.
Blount Cty., No. E2011-01713-COA-R3CV, 2012 WL 3012631, at *5 (Tenn. Ct. App.
July 24, 2012) (citing Peterson, 2006 WL 3007516, at *5-6)). In this case, Plaintiffs
assert that the factual dispute arises in determining what date the “taking” actually
occurred to trigger the applicable statute of limitations. The statute of limitations for “all
taking claims” is codified at Tennessee Code Annotated section 29-16-124. B & B
Enters. of Wilson Cty., LLC v. City of Lebanon, 318 S.W.3d 839, 846 (Tenn. 2010)
(citations omitted). This statute provides that proceedings “shall be commenced 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. As we
recently explained:

                                            - 11 -
       For the purposes of section 29-16-124, “a ‘taking’ occurs when the ‘injury
       to ... property ... reasonably appears ... to be a permanent injury rather than
       a temporary one.’” B & B Enters., 318 S.W.3d at 846 (citing Knox Cnty. v.
       Moncier, 224 Tenn. 361, 367, 455 S.W.2d 153, 156 (Tenn. 1970)). An
       inverse condemnation cause of action therefore accrues when the plaintiff
       “realizes or should reasonably realize that his property has sustained an
       injury which is permanent in nature.” Moncier, 455 S.W.2d at 156; see also
       Bobo v. City of Jackson, 511 S.W.3d 14, 20 (Tenn. Ct. App. 2015) (“The
       occurrence of a “taking” or permanent injury within the meaning of the
       statute is not necessarily contemporaneous to the manifested harm about
       which the plaintiff ultimately complains. If sufficient facts exist to show
       that the plaintiff should reasonably realize that some type of permanent
       injury has occurred, the running of the limitation period will commence at
       that point.”).

Little v. City of Chattanooga, No. E2018-00870-COA-R3-CV, 2019 WL 1308264, at *11
(Tenn. Ct. App. Mar. 21, 2019).

        Our analysis also includes review of the substance of Plaintiffs’ claims in this
matter. Plaintiffs allege that the interstate construction performed by the State has caused
their property to flood. It is undisputed that the Plaintiffs experienced three severe floods
over a period of five years, the last of which occurred on June 29, 2014. When presented
with the issue of whether flooding resulting from construction of public improvements is
a claim for temporary nuisance or inverse condemnation, Tennessee courts have held that
a claim for inverse condemnation is the exclusive remedy. See, e.g., Monday, 417 S.W.2d
at 537-38 (finding that flood damages to plaintiff’s property, caused by construction of a
highway, amounted to a “taking” by the county and that the exclusive remedy was a
claim under the eminent domain statutes); Burchfield, 774 S.W.2d at 183 (reversing the
trial court’s award of damages for temporary nuisance when “the facts of th[e] case more
nearly parallel the cases where a taking has been held to occur than those where it has
not”); Jones v. L & N R.R. Co., 617 S.W.2d 164, 170 (Tenn. Ct. App. 1981) (finding that
the “flooding of land as a result of a public improvement is not deemed to be a nuisance,
but a taking of private property for public use,” rendering inverse condemnation an
exclusive remedy in this context). Plaintiffs further allege another element of an inverse
condemnation claim: that the flooding of their property and home “has significantly
reduced the market value of the property.” This also points to this injury being
permanent and not temporary. We have stated that “[o]ne indication that the injury is
permanent and therefore a taking is damage to the market value of the property.”
Loveday, 2012 WL 3012631, at *5 (citations omitted).

      Based upon the severity of the flooding and number of times that it has occurred,
and the alleged reduction in property value, we determine that the record supports only
one conclusion: that Plaintiffs knew the damage to the property at issue was permanent.
                                          - 12 -
Therefore, the State would not be liable on a nuisance theory, as Plaintiffs’ exclusive
remedy is an action for damages under the inverse condemnation statute.

       Plaintiffs state that, if a taking occurred at all, it did not occur until June 29, 2014,
the date of the last flooding. In reviewing the evidence in the light most favorable to
Plaintiffs, it is clear Plaintiffs knew of the permanent injury at least by June 29, 2014, and
that was the latest date that the statute of limitations on the taking began to run in regard
to Plaintiffs’ claims against the State.8 We emphasize again that “a ‘taking’ occurs when
the ‘injury to ... property ... reasonably appears ... to be a permanent injury rather than a
temporary one.’” B & B Enters., 318 S.W.3d at 846 (citing Moncier, 455 S.W.2d at 156
(emphasis added). Plaintiffs did not file notice of their claims against the State until
October 16, 2015, which is past the one-year statute of limitations. 9

       The trial court did not err in granting summary judgment to the State on the basis
that Plaintiffs’ claims were time-barred. Summary judgment is appropriate if the
undisputed facts support only one conclusion. It is clear that Plaintiffs failed to file
timely claims against the State. The trial court relied on different facts than this Court in
reaching its conclusion; however, despite the reasoning, the disposition is the same.
Plaintiffs did not file their claims within the applicable one-year statute of limitations.
Therefore, although for different reasons, we affirm the trial court’s grant of summary
judgment.

                                                 3. Estoppel

        Finally, we address Plaintiffs’ argument that the State is collaterally and equitably
estopped from asserting a statute of limitations defense. The State asserts that Plaintiffs
have waived the issues of equitable and collateral estoppel because they failed to raise the
doctrines before the trial court. Additionally, the State argues that Plaintiffs failed to
raise the issue of collateral estoppel in their statement of issues.

       First, we note that Plaintiffs failed to include the issue of collateral estoppel in
their “Statement of Issues.” We have repeatedly explained the necessity of complying

        8
           We express no opinion as to whether Plaintiffs had sufficient knowledge at any earlier date
because it is not necessary to do so for purposes of this opinion. We also reiterate, the facts are largely
taken from the complaint and statement of undisputed facts contained in the record. Many of the facts
were undisputed for purposes of the State’s “Motion for Summary Judgment.” However, these facts
should not be considered as conclusively established on remand, for purposes of the additional
proceedings involving any other defendants.
         9
           The Claims Commission Act “requires a written notice with basic information about the claim,
and provides that the applicable statute of limitations is tolled by the filing of the notice.” Moreno v. City
of Clarksville, 479 S.W.3d 795, 804-05 (Tenn. 2015) (citing Tenn. Code Ann. § 9-8-402). Accordingly,
the notice must be given “within the time provided by statutes of limitations applicable by the courts for
similar occurrences from which the claim arises[.]” Tenn. Code Ann. § 9-8-402(b).
                                                   - 13 -
with the Rules of this Court and the importance of properly drafted issues, to prevent
waiver. See, e.g., Cartwright v. Jackson Capital Partners, 478 S.W.3d at 615-16
(explaining that an issue that is not included in the statement of issues presented for
review is not properly before the appellate court). We have emphasized that “[c]ourts
have consistently held that issues must be included in the Statement of Issues Presented
for Review as required by Tennessee Rules of Appellate Procedure 27(a)(4)” to be
properly before the Court of Appeals. Hawkins v. Hart, 86 S.W.3d 522, 531 (Tenn. Ct.
App. 2001). Therefore, we deem the issue of collateral estoppel to be waived and without
merit.

        Next, we turn to the issue of equitable estoppel. Plaintiffs argue in their reply
brief that they “apprised” the trial court of their equitable estoppel claim, and thus have
not waived the issue. The only record citation they provide for this contention is their
response in opposition to the County’s motion to dismiss or in the alternative for
summary judgment.10 However, Plaintiffs do not provide any references to the record
where the doctrine of equitable estoppel was affirmatively asserted by name against any
of the other defendants. In their argument against waiver, Plaintiffs rely on the Supreme
Court decision in Fahrner v. SW Mfg., Inc., 48 S.W.3d 141 (Tenn. 2001), which held that
the trial court erred by failing to consider the doctrine of equitable estoppel when a party
had discussed “all the relevant facts before the trial court” but simply failed to properly
label the defense as equitable estoppel. Fahrner, 48 S.W.3d at 143 n.1. The Supreme
Court explained that the decision was not “inconsistent with the waiver approach
followed in Alexander v. Armentrout 24 S.W.3d 267 (Tenn. 2000).” Id. In Alexander v.
Armentrout, the Court held that the defendant’s failure to raise the defense of equitable
estoppel during the trial court proceedings constituted a waiver of that issue for the
purposes of appeal.

       From our review of the record, the State filed a motion for summary judgment, to
which Plaintiffs responded without submitting any additional evidence. Their response
did not explicitly assert the doctrine of equitable estoppel, but did contain some factual
allegations upon which they now base their argument regarding equitable estoppel. In
response to the motion for summary judgment, Plaintiffs only referenced these facts in an
effort to demonstrate that the taking of their property was temporary rather than
permanent, and they never argued that the statute of limitations should be tolled under an
equitable tolling doctrine such as equitable estoppel. At the hearing on the State’s motion
for summary judgment, Plaintiffs again did not raise the doctrine of equitable estoppel by
name, but referenced some of the same factual allegations.11
        10
           We note that the Order disposing of all claims against the County was filed by the trial court on
June 9, 2016. However, the State was not a party to the trial court litigation until more than one year
later.
        11
           From review of the transcript, although separate orders were entered, the hearings on the
motions filed by the City, MLGW, and the State were combined. Confusingly, Plaintiffs’ arguments
appeared to overlap and apply to all motions.
                                                  - 14 -
        In any event, Plaintiffs have failed to demonstrate that equitable estoppel should
toll the running of the statute of limitations for their claim against the State. This Court
has discussed the doctrine of equitable estoppel, stating:

              To successfully invoke the doctrine of equitable estoppel, a plaintiff
       must establish the following elements with respect to the party against
       whom the plaintiff asserts the doctrine: (1) Conduct which amounts to a
       false representation or concealment of material facts, or, at least, which is
       calculated to convey the impression that the facts are otherwise than, and
       inconsistent with, those which the party subsequently attempts to assert; (2)
       Intention, or at least expectation that such conduct shall be acted upon by
       the other party; (3) Knowledge, actual or constructive of the real facts.
       Equity Mortg. Funding, Inc. of Tennessee v. Haynes, No. M2011-01717-
       COA-R3[-]CV, 2012 WL 982958 (Tenn. Ct. App. 2012) (perm. app. denied
       Aug. 15, 2012). Accordingly, in order to apply equitable estoppel, the
       opposing party must have either concealed material facts or made a false
       representation of material “facts, either past or present.” Consumer Credit
       Union v. Hite, 801 S.W.2d 822, 825 (Tenn.Ct.App.1990).

Boyce v. LPP Mortg. Ltd., 435 S.W.3d 758, 771-72 (Tenn. Ct. App. 2013). “Equitable
estoppel is premised on the defendant's wrongdoing, and, consequently, the plaintiff must
be given the time during which the defendant misled the plaintiff so that plaintiff's
entitlement to the full statutory time period is preserved.” Fahrner, 48 S.W.3d at 146.

       Plaintiffs have provided no proof that the doctrine of equitable estoppel factually
applies to the State. There is no proof that the State engaged in any conduct which
amounted to a false representation or concealment of material facts, or, which was
calculated to convey the impression that the facts were otherwise than, and inconsistent
with, those which the party subsequently attempts to assert. The undisputed facts
indicate the State never made any assurances or promises to Plaintiffs. To the contrary,
TDOT officials denied that the interstate project contributed to Plaintiffs’ flooding.
Further, Plaintiffs concede that no action was taken by the State to remedy the flooding
problem.

       Further, the Tennessee Supreme Court has held that equitable estoppel “only
applies when the defendant has taken steps to specifically prevent the plaintiff from
timely filing his complaint (as where he promises not to plead the statute of limitations).”
Fahrner, 48 S.W.3d at 146. Again, there is no proof that the State took any steps to
prevent plaintiffs from filing their complaint, or to delay in filing their complaint.
Therefore, we decline to conclude that the doctrine of equitable estoppel is applicable in
regard to the claims against the State in this case.

                                           - 15 -
      Based upon the foregoing, we deem the issues involving the doctrines of equitable
and collateral estoppel to be waived and without merit.

                                 IV.    CONCLUSION

        For the aforementioned reasons, the decision of the circuit court is affirmed in
part, vacated in part, and remanded for further proceedings. Costs of this appeal are
taxed equally to the appellants, Daniel Harvey and Portia Harvey, and to the appellees,
City of Memphis and Memphis Light, Gas, and Water Division for which execution may
issue if necessary.

                                                  _________________________________
                                                  CARMA DENNIS MCGEE, JUDGE




                                         - 16 -
