JENNIE ROLES-WALTER, ET AL.
ROBERTA W. KIDD, ET AL.
Session February 6, 2018.
from the Circuit Court for Lincoln County No. 17CV-6 Franklin
L. Russell, Judge.
a property damage case. Appellants assert that their property
is being damaged by the defective gutter systems of adjacent
buildings, which are owned by Appellees. The trial court
granted Appellees' Tennessee Rule of Civil Procedure
12.02(6) motions to dismiss Appellants' complaint,
finding that Appellants' claim was barred by the
three-year statute of limitations applicable to claims for
property damage. Tenn. Code Ann. §28-3-105. Appellants
contend that their complaint sounds in nuisance, specifically
temporary nuisance, and not in negligence. Accordingly,
Appellants argue that the statute of limitations renews with
each rain. While we agree with the trial court that
Appellants' claim is one for negligence and not for
nuisance, we conclude that the trial court erred in
dismissing the complaint as time-barred. Applying the
discovery rule and giving Appellants all reasonable
inferences based on the averments in their complaint, we
conclude that Appellants have pled facts sufficient to
survive the motions to dismiss.
R. App. P. 3 Appeal as of Right; Judgment of the Circuit
Court Affirmed in Part; Reversed in Part, and
Russell L. Leonard, Winchester, Tennessee, for the
Roles-Walter, and Cameron Walter.
D. Kitch, Nashville, Tennessee, for the appellee.
Roberta W. Kidd. C. Michael Becker, Nashville, Tennessee, for
the appellees, Van Massey, and Melissa Massey.
Armstrong, J., delivered the opinion of the court, in which
Frank G. Clement, Jr., P.J., M.S., and W. Neal McBrayer, J.,
of 2012, Jennie Roles-Walter and Cameron Walter (together,
"Appellants") purchased commercial property located
on Main Street in Fayetteville, Tennessee. Roberta W. Kidd
and Van and Melissa Massey (the "Masseys, " and
together with Ms. Kidd, "Appellees") own separate
commercial buildings adjacent to the Appellants'
property. According to the Appellants' complaint, which
was filed on November 1, 2016:
7. On or around the end of December 2012, and with the first
heavy rains, [Appellants] began to have issues with rain
water from the adjacent alleyway flooding their building.
This flooding interfered with [Appellants'] business
venture for which they had purchased the property.
8. [Appellants] have expended monies in the amount of
approximately nineteen thousand five hundred dollars ($19,
500.00) to date in efforts to repair the damage done to their
property by the water seeping through [the] exterior wall on
the alley side of the building, as well as to stop the water
from entering the building and flooding their floor.
9. Upon examination by [Appellants], and subsequently by
professionals in this area of construction diagnostics, it
became clear that water from the buildings owned by the
individual [Appellees] and located adjacent to
[Appellants'] building on the other side of the narrow
alley coming off the roofs of said buildings, was the root
cause of [Appellants'] destructive water issues. . . .
10. [Appellants] aver that the gutter systems of the
individual [Appellees'] structures are antiquated,
dilapidated and otherwise unable and insufficient to handle
the amount of water leaving the roofs, thereby flooding the
alleyway and causing the brick and mortar of
[Appellants'] wall facing the alley to become saturated,
causing the flooding of [Appellants'] building.
11. [Appellants] further aver that this flooding resulting
from the water leaving the individual [Appellees']
buildings is eroding the masonry structure of [their]
building's wall and causing black mold issues.
12. [Appellants] aver that these individual [Appellees] have
been approached on numerous occasions and . . . have failed
and/or refused to take any responsibility for the damage
being suffered by [Appellants], and/or [to] take any actions
intended to remedy the water issues.
16. Additionally, [Appellants] have been advised by Grau
General Contracting, LLC, that the building immediately
adjacent to [Appellants'] building owned by the [Masseys]
has been damaged by water such that the structural integrity
has likely been compromised. This will need to be addressed
in conjunction with, if not before any serious remedial
measures to address the water issues are undertaken.
17. [Appellants] aver that the intentional and/or negligent
failure of all the named [Appellees] to take those actions
necessary to prevent further and continued water damage to
[Appellants'] structure has resulted in [Appellants']
loss of business in the dollar amount of approximately twelve
thousand dollars ($12, 000.00) to date.
exhibits to their complaint, Appellants attached two letters.
The first letter, dated February 12, 2016, is addressed to
the Mayor of Fayetteville from Sadler & Associates
Consulting Engineers. In relevant part, Sadler &
Associates opined that the water damage to Appellants'
property was caused, at least in part, by undersized,
antiquated, and/or damaged gutters and downspouts on
buildings adjacent to Appellants' building. The second
letter, dated May 6, 2016, is addressed to Ms. Roles-Walter
from Grau General Contracting, LLC. Like Sadler &
Associates, Grau General Contracting ...