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Bilbo v. Ocoee Place Condo. Homeowners Ass'n

Court of Appeals of Tennessee, Knoxville

December 12, 2014

JIMMY W. BILBO, ET AL.
v.
OCOEE PLACE CONDOMINIUM HOMEOWNERS ASSOCIATION, ET AL

Session August 28, 2014

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed Case Remanded. Appeal from the Circuit Court for Bradley County. No. V-12-726. Jon Kerry Blackwood, Senior Judge.

Judgment of the Circuit Court Affirmed Case Remanded.

Brent McIntosh, Cleveland, Tennessee, for the appellants, Jimmy W. Bilbo and Mildred D. Bilbo.

Jeffrey R. Thompson, Knoxville, Tennessee, for the appellee, Ocoee Place Condominium Homeowners Association.

D. MICHAEL SWINEY, J., delivered the opinion of the Court, in which CHARLES D. SUSANO, JR., C.J., and THOMAS R. FRIERSON, II, J., joined.

OPINION

D. MICHAEL SWINEY, Judge

Page 491

Jimmy W. Bilbo and Mildred D. Bilbo (" Plaintiffs" ) sued Ocoee Place Condominium Homeowners Association[1] (" Defendant" ) for, among other things, negligent construction which allegedly caused flooding that damaged Plaintiffs' property. Defendant filed a motion for summary judgment alleging, in part, that Defendant did not own the relevant real property, that Defendant exercised no input or control over the construction, and that Plaintiffs' action was barred by the statute of limitations and the statute of repose. The Circuit Court for Bradley County (" the Trial Court" ) granted Defendant's motion for summary judgment. Plaintiffs filed a motion to alter or amend, which the Trial Court denied. Plaintiffs appeal to this Court raising issues regarding whether the Trial Court erred in refusing to alter or amend the grant of summary judgment pursuant to Tenn. R. Civ. P. 54.02 or Tenn. R. Civ. P. 60.02. We find no abuse of discretion in the Trial Court's denial of Plaintiffs' Tenn. R. Civ. P. 54.02 or 60.02 motion, and we affirm.

OPINION

Background

Plaintiffs own real property located in Bradley County, Tennessee. Ocoee Place Condominiums (" the Condos" ) were constructed on real property that adjoins Plaintiffs' property. Plaintiffs allege that the construction of the Condos did not comply with a two hundred foot setback required by the City of Cleveland. Additionally, during construction of the Condos, a creek, which previously had carried surface water away from Plaintiffs' property, was filled. Plaintiffs allege that on September 22, 2011 " after a rainfall and due to the diversion of the natural flow of the surface runoff, running water flowed under the [Plaintiffs'] residence and caused extensive damage to the dwelling, equipment and other property . . . ." Plaintiffs filed this suit against Defendant on September 21, 2012.

Page 492

Defendant filed a motion for summary judgment alleging, in pertinent part, that Defendant did not own the real property upon which the Condos were constructed and that Defendant exercised no input or control over the construction of the Condos. In support of its motion for summary judgment, Defendant filed the " Declaration of Mary Roberts" rather than an affidavit, as permitted by Tenn. R. Civ. P. 72. Plaintiffs responded to Defendant's motion for summary judgment and agreed for the purpose of ruling on the motion for summary judgment that Defendant:

did not have any role whatsoever in the construction or design of ...

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