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Harvey v. Shelby County Tennessee

Court of Appeals of Tennessee, Jackson

August 16, 2019


          Session June 18, 2019

          Appeal from the Circuit Court for Shelby County No. CT-002662-15 Rhynette N. Hurd, Judge

         Plaintiffs 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 this opinion.

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

          Ryan Simatic, Minneapolis, Minnesota, and Edward Brading, Johnson City, Tennessee, for the appellants, Daniel Harvey and Portia Harvey.

          Robert 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.

          David 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.

          Carma 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.



         I. Facts &Procedural History[1]

         Daniel 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 Plaintiffs' property.

         In the 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 events.

         In 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.

         Memphis 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 MLGW approved.

         On 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.[2] 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.

         Plaintiffs' 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.

         In 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 . . . .

         The 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.

         Plaintiffs' 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.

         On 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.[3] The emails detailed steps being taken by the City and stated that efforts were being made to find a solution to improve the flooding.

         On June 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 limitations.[4]

         On 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.[5]

         On 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 State.[6]

         Following 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 court found:

. . . . [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.

         The trial court's final orders were entered on August 15, 2018, and August ...

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