                    IN THE COURT OF APPEALS OF TENNESSEE
                               AT KNOXVILLE
                                 Assigned on Briefs April 4, 2016

               TED COPE, ET AL. v. HAWKINS COUNTY, TENNESSEE

                      Appeal from the Circuit Court for Hawkins County
                         No. 13CV0077      Thomas J. Wright, Judge


                     No. E2015-01615-COA-R3-CV-FILED-MAY 25, 2016


Several property owners brought suit against the county for inverse condemnation when
the county commission‟s road committee rescinded its recommendation to accept a road
as a county road. The county sought dismissal for failure to state a claim upon which
relief can be granted. The trial court dismissed the suit. The property owners appeal.
We affirm.

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

JOHN W. MCCLARTY, J., delivered the opinion of the Court, in which J. STEVEN
STAFFORD, P.J., W.S., and ANDY D. BENNETT, J., joined.

R. B. Baird, III, Rogersville, Tennessee, for the appellants, Ted Cope, Edwin Cope, and
Aaron Cope.

James O. Phillips, III, Rogersville, Tennessee, for the appellee, Hawkins County,
Tennessee.

                                    MEMORANDUM OPINION1

     On August 27, 2010, the Hawkins County Commission Road Committee (“the
Road Committee”) voted to issue a recommendation approving a road known as Red

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

          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          opinion it shall be designated „MEMORANDUM OPINION,‟ shall not be published, and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.
Rock Lane and offered by Ted Cope, Edwin Cope, and Aaron Cope (collectively
“Property Owners”) as a county road. In 2012, Property Owners began preparing to sell
the land serviced by Red Rock Lane. They soon discovered that the Hawkins County
Commission (“the County Commission”) never accepted the recommendation.

       On March 22, 2012, the Road Committee held a meeting in which it voted to
rescind the initial recommendation to approve Red Rock Lane as a county road. Property
Owners filed suit against Hawkins County (“the County”), alleging that the “action . . .
amounts to a „taking‟ for inverse condemnation purposes.” They claimed that the road
had been treated as a public road following the initial recommendation, evidencing an
implied ratification of the recommendation. They asserted that the reversal of the
recommendation reduced the market value of their property and caused them to incur
additional expenses to maintain the road. They further claimed that the March 22
meeting was “likely” held in violation of “the Tennessee Open Meeting Act for lack of
notice to interested parties.”

        The County denied liability and any potential violation of the Tennessee Open
Meeting Act. The County also filed a motion to dismiss, alleging that the complaint
failed to state a cause of action upon which relief can be granted. They asserted that a
“taking” of real property never occurred because the County Commission never approved
Red Rock Lane as a county road. They claimed that the Road Committee merely issued a
recommendation and argued that the County Commission‟s failure to accept the
recommendation was not an implied ratification of the recommendation. Property
Owners responded that dismissal was inappropriate when they clearly alleged “a „taking‟
claim which is both compensable and redressable by [the trial court].”

       Following a hearing, the trial court granted the County‟s motion to dismiss for
“failure to state a claim upon which relief can be granted” pursuant to Rule 12.02(6) of
the Tennessee Rules of Civil Procedure. “A Rule 12.02(6) motion challenges „only the
legal sufficiency of the complaint, not the strength of the plaintiff‟s proof or evidence.”‟
Phillips v. Montgomery Cnty., 442 S.W.3d 233, 237 (Tenn. 2014) (quoting Webb v.
Nashville Area Habitat for Humanity, Inc., 346 S.W.3d 422, 426 (Tenn. 2011)). “In
considering a motion to dismiss, courts must construe the complaint liberally, presuming
all factual allegations to be true and giving the plaintiff the benefit of all reasonable
inferences.” Stewart v. Schofield, 368 S.W.3d 457, 462 (Tenn. 2012). “A trial court
should grant a motion to dismiss only when it appears that the plaintiff can prove no set
of facts in support of the claim that would entitle the plaintiff to relief.” Webb, 346
S.W.3d at 426 (internal quotation and citations omitted). The trial court‟s grant of the
motion to dismiss is subject to a de novo review with no presumption of correctness.
Phillips, 442 S.W.3d at 237.

                                            -2-
        Property Owners allege that the court erred in entering an order of dismissal when
the complaint contained several relevant and material facts that merited consideration,
e.g., the fact that Red Rock Lane had been treated like a county road and the fact that
they incurred damages when the Road Committee voted to rescind the recommendation.
The County responds that dismissal was appropriate when Property Owners failed to
allege any legal basis that would constitute a valid cause of action.

       The Tennessee Supreme Court summarized the history of inverse condemnation
actions in Tennessee as follows:

      The Tennessee Constitution states that no man‟s particular services shall be
      demanded, or property taken, or applied to public use, without the consent
      of his representatives, or without just compensation being made therefor.
      This constitutional provision recognizes the governmental right of eminent
      domain. The government is prohibited, however, from taking property for
      private purposes and must pay just compensation when property is taken
      for public use. The Tennessee General Assembly has implemented this
      provision by its passage of eminent domain and inverse condemnation
      statutes.

      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. 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. Not every
      destruction or injury to property caused by governmental action, however,
      constitutes a taking under article I, section 21 of the Tennessee
      Constitution.

Edwards v. Hallsdale-Powell Util. Dist. Knox Cnty., Tenn., 115 S.W.3d 461, 464-65
(Tenn. 2003) (internal citations omitted). In Edwards, the Supreme Court recognized two
classifications of takings, physical occupation takings and nuisance-type takings. Id. at
465. In 2014, the Supreme Court recognized that “the Takings Clause of the United
States Constitution, article I, section 21 of the Tennessee Constitution [also] encompasses
regulatory takings.” Phillips, 442 S.W.3d at 244-45.

       While Property Owners may have suffered injury as a result of the County‟s
refusal to designate Red Rock Lane as a county road, a taking of real property never
                                           -3-
occurred. Taking all reasonable inferences in favor of Property Owners as we are
constrained to do in our review of the case, we conclude that the complaint failed to state
a cause of action for which they may seek compensation under Tennessee‟s inverse
condemnation statute, codified at Tennessee Code Annotated section 29-16-123.2 The
judgment of the trial court is affirmed, and the case is remanded to the trial court for such
further proceedings as may be necessary. Costs of the appeal are taxed equally to the
appellants, Ted Cope, Edwin Cope, and Aaron Cope.


                                                         _________________________________
                                                         JOHN W. McCLARTY, JUDGE




2
  “If, however, such person or company has actually taken possession of such land, occupying it for the
purposes of internal improvement, the owner of such land may petition for a jury of inquest, in which case
the same proceedings may be had, as near as may be, as hereinbefore provided; or the owner may sue for
damages in the ordinary way, in which case the jury shall lay off the land by metes and bounds and assess
the damages, as upon the trial of an appeal from the return of a jury of inquest.”
                                                   -4-
