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Roles-Walter v. Kidd

Court of Appeals of Tennessee, Nashville

April 24, 2018

JENNIE ROLES-WALTER, ET AL.
v.
ROBERTA W. KIDD, ET AL.

          Session February 6, 2018.

          Appeal from the Circuit Court for Lincoln County No. 17CV-6 Franklin L. Russell, Judge.

         This is 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.

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

          Russell L. Leonard, Winchester, Tennessee, for the appellants.

          Jennie Roles-Walter, and Cameron Walter.

          John D. Kitch, Nashville, Tennessee, for the appellee.

          Roberta W. Kidd. C. Michael Becker, Nashville, Tennessee, for the appellees, Van Massey, and Melissa Massey.

          Kenny Armstrong, J., delivered the opinion of the court, in which Frank G. Clement, Jr., P.J., M.S., and W. Neal McBrayer, J., joined.

          OPINION

          KENNY ARMSTRONG, JUDGE.

         I. Background

         In July 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.[1]

         As 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 ...


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