JEFFREY HEATLEY ET AL.
DAVID G. GAITHER ET AL.
5, 2019 Session
from the Circuit Court for Putnam County No. 2018-CV-60 Amy
V. Hollars, Judge
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.
R. App. P. 3 Appeal as of Right; Judgment of the Circuit
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.
Neal McBrayer, J., delivered the opinion of the court, in
which Frank G. Clement, Jr., P.J., M.S., and Andy D. Bennett,
MEMORANDUM OPINION 
NEAL MCBRAYER, JUDGE.
Heatley and his wife,  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.
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.
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
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,
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." ...