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Heatley v. Gaither

Court of Appeals of Tennessee, Nashville

June 28, 2019


          June 5, 2019 Session

          Appeal from the Circuit Court for Putnam County No. 2018-CV-60 Amy V. Hollars, Judge

         This is an appeal from the dismissal of the plaintiffs' second lawsuit against adjacent property owners arising from the discovery of a leaking septic tank on the plaintiffs' property. In their first lawsuit, the plaintiffs sued their neighbors in chancery court for negligence and trespass after discovering that the leaking septic tank was connected to a mental health facility on their neighbors' property. While the first action was still pending, the plaintiffs filed this action against their neighbors for continuing nuisance and trespass arising from the leaking septic tank. The defendants moved for summary judgment based on the doctrine of prior suit pending. The plaintiffs opposed the motion and requested additional time to conduct discovery. After the trial court granted summary judgment to the defendants, the plaintiffs appealed. We conclude that the requested discovery was unnecessary to respond to the defendants' motion and that all the elements of the defense of prior suit pending were present. So we affirm.

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

          G. Kline Preston IV, Nashville, Tennessee, for the appellants, Jeffrey Heatley and Estate of Kathryn Heatley.

          Douglas L. Dunn, Knoxville, Tennessee, for the appellees, Generations-Gaither's Inc., David G. Gaither, and Patricia W. Gaither.

          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.




         Jeffrey Heatley and his wife, [2] own property next to David and Patricia Gaither. These adjoining properties were previously owned by Melvin Malone and his wife, Anna Rose Malone, as one parcel. In the late 1960s, the Malones installed an underground sewage disposal system for their home that included two septic tanks. Almost thirty years later, the Malones subdivided their property. As a result, the Malone house was located on what would become the Gaither property and part of the house's septic system was located underneath what would become the Heatley property.

         In October 2013, the Heatleys notified David Gaither that they had uncovered a clay pipe on their property that led to the Gaither property. On or about October 30, 2013, the parties discovered that the clay pipe connected Skylar House, a mental health facility on the Gaither property, to a septic tank on the Heatley property. Mr. Gaither had the newly discovered tank emptied on November 4, and he applied for the necessary permit to permanently disconnect the tank. Shortly thereafter, he arranged to close the facilities at Skylar House that were connected to the septic line. The septic line was permanently severed and sealed under the supervision of the Tennessee Department of Environment and Conservation on or about February 21, 2014.

         On January 23, 2014, before the tank was permanently disconnected, the Heatleys filed their first action against David and Patricia Gaither and two related entities, Gaither's Inc. and Generations-Gaither's Inc., (collectively, the "Gaithers") in the Chancery Court for Putnam County, Tennessee. The complaint alleged that sewage or wastewater was continuously leaking from the newly discovered septic tank. Among other things, the Heatleys asserted claims against the Gaithers for negligence and trespass. According to the Heatleys, even after the septic line was permanently disconnected, the tank continued to leak, apparently from contents that had accumulated after the tank was emptied but before the line was permanently severed.

         The Gaithers moved for summary judgment on all claims. The Heatleys opposed the dismissal of their negligence and trespass claims. And they moved to amend their complaint to "reflect the status and facts of the case which have persisted since October 30, 2013" and add claims for gross negligence, nuisance, and continuing trespass. The chancery court granted summary judgment to the Gaithers on all claims and denied the Heatleys' motion to amend the complaint. The Heatleys appealed to this Court on March 7, 2018.

         On April 10, 2018, while their appeal in the first case was pending, the Heatleys filed a new complaint against David and Patricia Gaither and Generations-Gaither's, Inc. in Putnam County Circuit Court based on the leaking septic tank. This time, the Heatleys asserted claims for nuisance and trespass but specifically limited the time frame of their claims to "all occurrences and all times beginning on January 24, 2014[, the day after the filing of the first action, ] to the present." ...

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