DANIEL HARVEY, ET AL.
SHELBY COUNTY TENNESSEE, ET AL.
Session June 18, 2019
from the Circuit Court for Shelby County No. CT-002662-15
Rhynette N. Hurd, Judge
filed a complaint against multiple governmental entities for
flood damages to their property. Each defendant filed a
pre-trial motion to dismiss and/or a motion for summary
judgment. The trial court granted judgment on the pleadings
and summary judgment, finding that Plaintiffs' claims
were barred by the applicable statute of limitations.
Plaintiffs appeal. For the reasons stated herein, the
decision of the trial court is affirmed in part, vacated in
part, and remanded for further proceedings consistent with
R. App. P. 3 Appeal as of Right; Judgment of the Circuit
Court Affirmed in Part, Vacated in Part, and
Simatic, Minneapolis, Minnesota, and Edward Brading, Johnson
City, Tennessee, for the appellants, Daniel Harvey and Portia
B. Rolwing, Memphis, Tennessee, for the appellee, Shelby
County, Tennessee. Randall D. Noel and Gadson W. Perry,
Memphis, Tennessee, for the appellee, City of Memphis.
L. Bearman and Ryan A. Strain, Memphis, Tennessee, for the
appellee, Memphis Light, Gas, and Water Division.
Herbert H. Slatery, III, Attorney General and Reporter;
Andrée S. Blumstein, Solicitor General; James R.
Newsom, III, Special Counsel; and Matthew Dowty, Assistant
Attorney General, for the appellee, State of Tennessee.
Dennis McGee, J., delivered the opinion of the court, in
which J. Steven Stafford, P.J., W.S., and Thomas R. Frierson,
II, J., joined.
DENNIS McGEE, JUDGE
Facts &Procedural History
Harvey and Portia Harvey ("Plaintiffs") own
property east of Interstate 240 in Memphis, Tennessee. Their
property, described as Lot 2 in Section B of the Sweetbriar
Woods Subdivision, borders the Tennessee Department of
Transportation ("TDOT") right-of-way for the
interstate. Interstate 240 was originally constructed in the
1960s. As part of its original construction, an 8 feet by 6
feet concrete box culvert was installed for drainage. The
culvert runs underneath the surface of the interstate and
empties into a drainage ditch behind what is now
1970s, the subdivision was developed along with its own
drainage system. As part of the subdivision's drainage
system, an 8 feet by 3 feet concrete box culvert was
installed to "receive drainage exiting the I-240
right-of-way." The 8 feet by 3 feet culvert was not
large enough to accommodate peak water flows running
underneath the interstate, causing Lot 2 to flood. In the
1980s, the City of Memphis installed reinforced concrete pipe
running parallel to the 8 feet by 3 feet box culvert, for
"additional conveyance capacity" after storm
1997, Plaintiffs began to reside on Lot 2. Nine years later,
TDOT entered into an agreement with an engineering and design
firm for the development of plans for widening of the
interstate. During this time, TDOT had knowledge of the
preexisting deficiencies in the subdivision's drainage
system. TDOT investigated the possibility of constructing a
detention basin on the west side of Interstate 240 to ensure
improvements made to the interstate would not worsen the
flooding in the subdivision.
Light, Gas, and Water Division ("MLGW") operates
and maintains electrical transmission towers and gas lines on
the property west of and adjacent to the TDOT right-of-way,
which is where the proposed detention basin was to be
constructed. Prior to commencement of roadwork, TDOT and the
engineering firm worked to design a detention basin that
would comply with the requirements of MLGW. The engineering
firm conducted a pre-construction study, which concluded that
the proposed detention basin would be sufficient to offset
any additional runoff resulting from the interstate
modifications, but would not be large enough to completely
alleviate the flooding in the subdivision. TDOT reviewed the
study and included a detention basin in its final plan, which
August 18, 2009, Plaintiffs' home was
"severely" flooded for the first time, after
Memphis experienced heavy rain. According to Plaintiffs, the
flooding caused extensive damage to their home. Plaintiffs
denied experiencing any flooding from 1997 to 2009.
Plaintiffs attributed the flooding to the Interstate 240
construction work, which they allege began in
2008. According to Plaintiffs, they gave notice
of the 2009 flooding to "the City, County, State, and
MLGW." Construction of the detention basin was completed
in April 2012.
property severely flooded for a second time during a period
of heavy rain on January 30, 2013, again causing extensive
damage. Plaintiffs reported the flood to the State (and
possibly to the City, County, and MLGW). They expressed
concerns that the construction on Interstate 240 contributed
to the flooding. TDOT did not take any further action to
address the flooding in the area or assure Plaintiffs that
such action would or could be taken.
2013, the same engineering firm that conducted the
pre-construction study for TDOT prepared a report for the
City, which stated:
Due to historic and continued flooding events which at times
resulted in flood damage to the home at . . . (Lot 2,
Sweetbriar Wood Subdivision, Section B), the City engaged
Fisher & Arnold, Inc, to perform a storm water analysis
to determine the potential for improvements to an existing
detention basin located within the MLG&W Transmission
Right-of-Way adjacent to and west of the I-240 right-of-way
in order to maximize downstream reductions in the resulting
peak flows. In hopes of mitigating the flooding issues in the
Sweetbriar Woods Subdivision, Fisher & Arnold, Inc. was
tasked with the following scope . . . .
report further stated that "despite the 1980s
modification . . . Lot 2 has continued to experience
flooding." It indicated that the 2012 detention basin
constructed by TDOT "was designed to address increased
runoff from the expansion of I-240, but was not designed to
address the historic flooding" in the subdivision. The
primary consideration of the 2013 report was to explore
options for "expanding and/or modifying the detention
basin to further restrict the outflow and perhaps mitigate or
at least reduce the degree of flooding," which occurs in
the subdivision. The engineering firm provided two possible
options to "significantly reduce the peak flows" of
water in the subdivision. However, there is nothing in the
record to indicate that either option was ever implemented.
Plaintiffs concede, in their brief, that the 2013 Fisher
& Arnold report was delivered to them on August 12, 2013.
property flooded for a third time, during a period of heavy
rain, on June 29, 2014. Again, the flood caused extensive
damage to the home. Plaintiffs again gave the State (and
possibly the City, County, and MLGW) notice of the flooding.
In July 2014, Plaintiffs had email communications with TDOT,
reiterating their request for relief. TDOT officials
responded, stating that their project "has not increased
drainage" in the area. To the contrary, the TDOT
official explained that "the detention basin operated to
reduce the peak volume of water flowing into the drainage
channels behind Plaintiffs' property from
pre-construction levels." TDOT did not take any further
action to address flooding in the subdivision and never
assured Plaintiffs or other residents of the subdivision that
such action would be taken.
October 20, 2014, a neighborhood meeting was held to discuss
the flooding with various governmental representatives. The
aforementioned TDOT official attended the meeting, but he did
not make any representation that TDOT would or could take
further action to address flooding in the subdivision.
According to Plaintiffs, despite the "significant
drainage and flooding problems . . . Defendants failed to
implement any actions to remedy the problems." In 2014
and 2015, Plaintiffs received emails from the office of
Tennessee House District 83 Representative Mark White
regarding their property. The emails detailed steps being taken
by the City and stated that efforts were being made to find a
solution to improve the flooding.
23, 2015, Plaintiffs filed a complaint in the trial court
against the City, Shelby County, and MLGW. They asserted
claims for (1) violation of Tenn. Code Ann. § 7-31-112,
(2) nuisance, (3) trespass, (4) negligence, and (5) inverse
condemnation. Plaintiffs alleged that they were entitled to
damages as the flooding from the interstate project had
"significantly" reduced the market value of the
property. Shortly thereafter, the County filed a "Motion
to Dismiss or in the Alternative for Summary Judgment."
On June 9, 2016, an order was entered granting the
County's motion. The trial court concluded that the
County was an improper party and that Plaintiffs' tort
claims against the County were time-barred by the statute of
October 16, 2015, Plaintiffs filed notice of claims against
the State in the Tennessee Division of Claims Administration,
which were later transferred to the Tennessee Claims
Commission. Plaintiffs then filed a complaint for damages
against the State in the Claims Commission on February 12,
2016. Plaintiffs alleged essentially the same facts that they
asserted in their complaint filed in the trial court.
However, they only made claims against the State for (1)
nuisance, (2) negligence, and (3) inverse condemnation. In
mid-2017, these claims were transferred to and consolidated
with their claims in the trial court.
March 16, 2018, the City and MLGW filed motions for judgment
on the pleadings. The State filed a motion for summary
judgment on April 11, 2018, supporting it with a memorandum
of law, affidavits, a statement of undisputed facts, and
other exhibits. Plaintiffs responded to the City, MLGW, and
the State's motions; however, they failed to respond to
the statement of undisputed facts submitted by the
arguments on the motions, the trial court granted the City
and MLGW's motions, as well as the State's. As to the
City and MLGW, the court held that Plaintiffs' claims for
trespass, negligence, nuisance, and inverse condemnation
accrued no later than 2013 and were barred by the one-year
statute of limitations. Regarding the State's motion, the
. . . . [T]he undisputed facts show[ed] Plaintiffs knew or
reasonably should have known of a permanent injury to their
property in January 2013. Because Plaintiffs initiated this
suit against the State more than one year later, on October
16, 2015, their claims against the State are time-barred
under Tenn. Code Ann. § 29-16-124, and the State is
entitled to judgment as a matter of law.
trial court's final orders were entered on August 15,
2018, and August ...