                                                                                             02/28/2018


               IN THE COURT OF APPEALS OF TENNESSEE
                           AT NASHVILLE
                              February 23, 2017 Session

            GENE PARISH v. SMITH UTILITY DISTRICT ET AL.

                  Appeal from the Circuit Court for Smith County
                  No. 15-CV-91       John D. Wootten, Jr., Judge
                     ___________________________________

                          No. M2016-00815-COA-R3-CV
                      ___________________________________


Plaintiff brought an action against a local utility district for damages allegedly arising
from the construction and maintenance of a water line on plaintiff’s property. Plaintiff
also sought injunctive relief. The utility company moved to dismiss, asserting that it
was immune from suit or, alternatively, that plaintiff’s action was barred by the
applicable statute of limitations. The trial court granted the utility company’s motion.
The court concluded that plaintiff’s claim for damages were barred by the
Governmental Tort Liability Act. The court further concluded that plaintiff’s request
for injunctive relief was barred by the GTLA’s one-year statute of limitations. And the
court determined that the action would be barred by the one-year statute of limitation
applicable to governmental takings. We conclude that the gravamen of plaintiff’s claim
was for inverse condemnation, and the action was time barred.

            Tenn. R. App. P. 3; Judgment of the Circuit Court Affirmed

W. NEAL MCBRAYER, J., delivered the opinion of the court, in which FRANK G.
CLEMENT, JR., P.J., M.S. and ANDY D. BENNETT J., joined.

G. Frank Lannom and Donnavon Vasek, Lebanon, Tennessee, for the appellant, Gene
Parish.

Jason K. Murrie and Thomas I. Carlton, Jr., Nashville, Tennessee, for the appellees,
Smith Utility District, and Mack Gann.
                                       OPINION

                                            I.

        In a letter dated February 18, 2013, Mack Gann, an employee of the Smith
Utility District, contacted Gene Parish to ask whether Mr. Parish, as a resident of Ben
Gentry Lane, would be interested in the installation of a water line. According to a
subsequently filed complaint, the allegations of which we assume to be true, Mr. Parish
initially declined the offer of public water access. But eventually Mr. Parish agreed to
“get the process started” after his neighbors promised to contribute $1,000 towards the
costs of installation.

       At some later point in time, when he went to pay his meter fee, Mr. Parish
discovered to his dismay that his neighbors had withdrawn their prior offer to help pay
for the installation of the water line. According to Mr. Parish, he then requested
additional time from Mr. Gann to “resolve their unaddressed issues.” By this point,
however, installation of the water line had apparently started, and Mr. Gann refused to
stop.

        “[O]n or about August 26, 2013,” Mr. Parish told Mr. Gann that he and Smith
Utility District were “trespassing on [his] land without any right or authority to do so.”
Mr. Parish also demanded that Mr. Gann and Smith Utility District leave the property
and never return. Mr. Gann refused and claimed a right to be on Mr. Parish’s property
by virtue of an easement. Mr. Parish disagreed and told Mr. Gann that the easement
was only for ingress and egress.

       On April 7, 2015, Mr. Parish filed a complaint for trespass against Smith Utility
District and Mr. Gann seeking damages and injunctive relief. The complaint claimed
that Smith Utility District and Mr. Gann “[d]uring the months of August, September,
and October of 2013, . . . entered onto the property . . . by physically driving heavy
construction equipment on the property and . . . excavating to install a water line.”
Mr. Parish also argued that Smith Utility District and Mr. Gann “continue to enter onto
the property . . . on a periodic time schedule.”

        Smith Utility District and Mr. Gann moved to dismiss Mr. Parish’s complaint for
failure to state a claim upon which relief could be granted. See Tenn. R. Civ. P.
12.02(6). They argued that they were immune from suit under the Governmental Tort
Liability Act (“GTLA”) and that Mr. Parish’s claims were barred by the statute of
limitations.

      Based on the motion, the Circuit Court for Smith County, Tennessee, dismissed
Mr. Parish’s claims with prejudice. The court concluded that the GTLA applied to
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Mr. Parish’s action and that Smith Utility District and Mr. Gann were immune from suit
to the extent Mr. Parish sought monetary damages for intentional trespass. See Tenn.
Code Ann. § 29-20-205(2) (2012) (“Immunity from suit of all governmental entities is
removed for injury proximately caused by a negligent act . . . except if the injury arises
out of . . . intentional trespass . . . .”). As for his request for injunctive relief, the court
concluded that the claim was subject to the 12-month statute of limitations under the
GTLA, Tenn. Code Ann. § 29-20-305(b) (2012), as well as the 12-month statute of
limitations applicable to inverse condemnation actions, Tenn. Code Ann. § 29-16-124
(2012).1 Reasoning that Mr. Parish’s cause of action accrued “on or about August 26,
2013,” the date he claimed he first became aware of the alleged trespass, the court
found that the action was not timely filed.

                                                  II.

        A statute of limitations defense is appropriately addressed in a motion to dismiss
under Rule 12.02(6) of the Tennessee Rules of Civil Procedure for failure to state a
claim upon which relief can be granted. See Gunter v. Lab. Corp. of Am., 121 S.W.3d
636, 638 (Tenn. 2003). A Rule 12.02(6) motion “challenges only the legal sufficiency
of the complaint, not the strength of the plaintiff’s proof or evidence.” Webb v.
Nashville Area Habitat for Humanity, Inc., 346 S.W.3d 422, 426 (Tenn. 2011). Thus,
“[t]he resolution of a 12.02(6) motion to dismiss is determined by an examination of the
pleadings alone.” Id.

        We “construe the complaint liberally, presuming all factual allegations to be true
and giving the plaintiff the benefit of all reasonable inferences.” Trau-Med of Am., Inc.
v. Allstate Ins. Co., 71 S.W.3d 691, 696 (Tenn. 2002). The complaint should not be
dismissed unless it appears that the plaintiff can prove no set of facts in support of his
or her claim that would warrant relief. Doe v. Sundquist, 2 S.W.3d 919, 922 (Tenn.
1999) (citing Riggs v. Burson, 941 S.W.2d 44, 47 (Tenn. 1997)). Making such a
determination presents a question of law. Our review of a trial court’s determinations
on issues of law is de novo, with no presumption of correctness. Id. (citing Stein v.
Davidson Hotel Co., 945 S.W.2d 714, 716 (Tenn. 1997)).

                                                  A.

        Here the trial court determined that the GTLA’s one-year statute of limitations
applied to Mr. Parish’s cause of action or, alternatively, that the one-year statute of
limitations applicable to inverse condemnation applied. To determine the applicable

        1
           In 2015, the Legislature amended Tennessee Code Annotated § 29-16-124. The statute as
amended took effect on July 1, 2015. 2015 Tenn. Pub. Acts 643 (Vol. I, ch. 275). Our analysis, like
that of the trial court, is based upon the version of the statue in effect prior to the 2015 amendments.

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statute of limitations, first “a court must ascertain the ‘gravamen of the complaint.’”2
Benz-Elliott v. Barrett Enters, LP, 456 S.W.3d 140, 147 (Tenn. 2015) (quoting Whaley
v. Perkins, 197 S.W.3d 665, 670 (Tenn. 2006)). The gravamen of the complaint is “the
‘substantial point,’ the ‘real purpose,’ or the ‘object’” of an action. Redwing v. Catholic
Bishop for Diocese of Memphis, 363 S.W.3d 436, 457 (Tenn. 2012) (quoting Estate of
French v. Stratford House, 333 S.W.3d 546, 557 (Tenn. 2011), overruled on other
grounds by Ellithorpe v. Weismark, 479 S.W.3d 818, 820 (Tenn. 2015), Bland v. Smith,
277 S.W.2d 377, 379 (Tenn. 1955), and Bodne v. Austin, 2 S.W.2d 100, 101 (Tenn.
1928), overruled on other grounds by Teeters v. Currey, 518 S.W.2d 512, 517 (Tenn.
1974)). In Benz-Elliott, our supreme court set out a two part inquiry for ascertaining the
gravamen of a claim:

       [A] court must first consider the legal basis of the claim and then consider
       the type of injuries for which damages are sought. This analysis is
       necessarily fact-intensive and requires a careful examination of the
       allegations of the complaint as to each claim for the types of injuries
       asserted and damages sought.

Benz-Elliott, 456 S.W.3d at 151. In carrying out the inquiry, we are not bound by “[t]he
designation given those claims by either the plaintiff or the defendant.” Estate of
French, 333 S.W.3d at 557. Determining the gravamen of a complaint or claim
presents a question of law. Redwing, 363 S.W.3d at 457.

        In his complaint, Mr. Parish asserts that Smith Utility District and Mr. Gann
were trespassing on his property. The complaint made no mention of either the GTLA
or inverse condemnation. He alleged that Smith Utility District and Mr. Gann entered
his property without consent in August, September, and October of 2013 to excavate
and install a water line and continue to enter the property “on a periodic time schedule.”
He further alleged that this continuing trespass would deprive him of his use of the
land, would result in a servient easement, and would threaten the good and marketable
title to his property. He requested an injunction to prevent Smith Utility District from
“keeping and maintaining a water line on the property,” a reasonable amount of
damages, and punitive damages “to punish the Defendant[s] and discourage them from
engaging in this intentional disregard of the Plaintiff’s property rights.”

      We conclude that the gravamen of Mr. Parish’s claim is for inverse
condemnation.



       2
          Our supreme court went on to differentiate between a complaint with more than one claim and
each individual claim in a complaint. Benz-Elliott, 456 S.W.3d at 147-49. In this case, Mr. Parish
presents one theory and one claim, trespass.
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       “Inverse condemnation” is the popular description for a cause of action
       brought by a property owner to recover the value of real 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 (1968). 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 v. Hallsdale-Powell Util. Dist. Knox Cty., Tenn., 115 S.W.3d 461, 464-65
(Tenn. 2003). When a governmental entity does not initiate taking proceedings, the
owner of the land that has been possessed by the governmental entity may sue for
damages. See Tenn. Code Ann. § 29-16-123 (2012).

        An action for inverse condemnation must be brought “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. In his complaint,
Mr. Parish states that he requested that work on his property cease on August 26, 2013.
He did not file his complaint until April 7, 2015. Using the date referenced in his
complaint, Mr. Parish clearly filed his action outside of the one year statute of
limitations set out in Tennessee Code Annotated § 29-16-124. Thus, his action was
time barred.

                                            B.

        While conceding his claim arising from the initial instance of trespass may be
time barred, Mr. Parish argues that “every time Smith Utility District sends a person,
without permission or consent, onto the property of Mr. Parish, a new cause of action
accrued for purposes of the one-year statute of limitations.” As he points out, where
there is a recurrent cause of action, “a distinct right of action arises with each wrongful
act.” Cincinnati, N.O. & T.P. Ry. Co. v. Roddy, 179 S.W. 143, 143 (Tenn. 1915).

       In our view, the complaint here fails to adequately allege a recurrent cause of
action for trespass. According to Mr. Parish’s complaint the trespasses deprived him of
the exclusive use of his property by “uprooting the . . . ground and digging large
trenches on his property.” The complaint also makes specific reference to an easement
that permits ingress and egress where the water line was constructed. Based on these
allegations, Mr. Parish has described an injury that was permanent in character or
nature. In such circumstances, for both present and prospective damages, the cause of
action accrued at the time of installation of the water line. See Robertson v. Cincinnati,

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N. O. & T. P. Ry. Co., 339 S.W.2d 6, 9 (Tenn. 1960) (citing 34 Am Jur. Limitation of
Actions § 131 (19__)).

                                          III.

       Because Mr. Parish’s claim was barred by the applicable statute of limitation, we
affirm the dismissal of his complaint.



                                                 _________________________________
                                                  W. NEAL MCBRAYER, JUDGE




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