§56.6 Statute of Repose

The Case: Chrisman v. Hill Home Development, Inc. , 978 S.W.2d 535 (Tenn. 1998).

The Basic Facts: This is a nuisance case in which the trial court granted summary judgment to the defendants on the basis of the statute of limitations and statute of repose.

The Bottom Line:

• "The next issue concerns the claim that Hill and Hill Home Development created a continuing nuisance in the construction of the drainage system in Fountain Gate I. The trial court, as stated, granted summary judgment to Hill and Hill Home Development. On appeal, the Court of Appeals reversed, finding that the continuation of the nuisance thrusts the claim well into any limitations period." 978 S.W.2d at 539.
• "The defendants insist that the four-year statute of repose, Tenn. Code Ann. § 28-3-202 (1980), bars the nuisance claim.^FN6 Tennessee Code Annotated § 28-3-202 provides:

  All actions to recover damages for any deficiency in the design, planning, supervision, observation of construction, or construction of an improvement to real property, for injury to property, real or personal, arising out of any such deficiency, or for injury to the person or for wrongful death arising out of any such deficiency, shall be brought against any person performing or furnishing the design, planning, supervision, observation of construction, construction of, or land surveying in connection with, such an improvement within four (4) years after substantial completion of such an improvement.
  
  FN6 The three-year statute of limitations, Tenn. Code Ann. § 28-3-105, does not bar the nuisance claim, because when a nuisance is temporary and continuous in nature, the very continuation of the nuisance is a new offense entitling plaintiffs to recover damages occurring within the applicable limitations period, even though the nuisance has existed longer than that limitations period. Kind v. Johnson City, 63 Tenn.App. 666, 672, 478 S.W.2d 63, 66 (1970)." Id.

• "The statute of repose will bar an action four years after substantial completion, regardless of when the plaintiff may have reasonably discovered the injury.^FN7 The discovery rule, utilized to ascertain when a cause of action has accrued under a statute of limitations, does not toll the statute of repose. Watts v. Putnam County, 525 S.W.2d 488, 491 (Tenn.1975). This point is emphasized by [Tenn. Code Ann. § 28-3-204 (1980)], which states that '[n]othing in this part shall be construed as extending the period, or periods provided by the laws of Tennessee or by agreement between the parties for the bringing of any action.'

  FN7 Tennessee Code Annotated § 28-3-203 (1980) will extend the four-year deadline one additional year from the date of the injury, if the injury occurred in the fourth year after substantial completion of the improvement. The damage to the inside of the plaintiffs' house did occur in the fourth year, in June 1992. Thus, they had at most until June 1993 to bring suit, but they waited until December 1994 to do so." Id. at 539-40.

• "Thus, because Fountain Gate I was substantially completed in December 1988, the defendants assert that the plaintiffs' suit was barred four years after that date. On the other hand, the plaintiffs contend that Tenn. Code Ann. § 28-3-202, which they characterize as an 'engineering negligence statute of limitations,' applies only to claims of negligence. Because nuisance is a strict liability action in which negligence is irrelevant, they insist that [Tenn. Code Ann. § 28-3-202] is inapplicable." Id. at 540.
• "The plaintiffs did not file suit until December 1994, six years after substantial completion. Therefore, if [Tenn. Code Ann. § 28-3-202] is applicable, it will unquestionably bar their nuisance claim. The dispositive question, then, is whether § 28-3-202 applies to the nuisance claim. We conclude that it does." Id.
• "In answering this question, we first note that the plain language of the statute is inescapable: all actions to recover damages, caused by any deficiency in the design or construction of an improvement, shall be brought within four years of substantial completion of the improvement. In order to construe the statute as suggested by the plaintiffs, we would have to find that the term 'deficiency' narrows the statute's scope to actions based only on a negligence theory-hardly a natural reading of the statute. When construing a statute, courts cannot give it a forced or subtle construction in an effort to limit or extend the import of the language. Worrall v. Kroger Co., 545 S.W.2d 736, 738 ([Tenn. 1977])." Id.
• "Further, the plaintiffs' interpretation of [Tenn. Code Ann. § 28-3-202] would repudiate legislative intent. In enacting the statute, the General Assembly intended to insulate contractors, architects, engineers, and others from liability for defective construction or design of improvements to realty where the injury happens more than four years after substantial completion of the improvement. Watts , 525 S.W.2d at 492 . These persons are not at all insulated if plaintiffs are allowed to circumvent the statute of repose merely by sticking a 'nuisance' label on a negligence claim." Id.
• "Moreover, [Tenn. Code Ann. § 28-3-202] has previously been construed to bar actions other than negligence actions. In Lonning v. Jim Walter Homes, Inc., 725 S.W.2d 682 (Tenn.App.1987), the Court of Appeals applied § 28-3-202 to bar a suit that included claims of fraudulent misrepresentation and breach of express warranty. The Court of Appeals also applied the statute to a suit that included claims of strict liability, breach of implied and express warranties, and misrepresentation. Pridemark Custom Plating, Inc. v. Upjohn, Co., 702 S.W.2d 566 ([Tenn. Ct. App. 1985)] (finding that the statute of repose did not bar the claim on different grounds). Like nuisance, these claims do not require proof of negligence, yet the statute of repose applies with equal effect to all of them." Id.
• "Casting a cause of action in terms of nuisance does not render the four-year statute of repose inapplicable. This is true because the designation given to a cause of action does not necessarily or conclusively determine whether [Tenn. Code Ann. § 28-3-202] applies. Rather, we must look to the substantive allegations of the complaint. In the instant case, the complaint contains a multitude of allegations with a considerable amount of blending and duplication. However, the pertinent allegations, as we have distilled them, are as follows:

  13. By the construction of Fountaingate I subdivision, Defendant Hill has created and maintained a temporary continuing drainage nuisance which has caused flooding onto Plaintiffs' property. Said flooding has inflicted physical harm to Plaintiffs' property and caused and will cause loss of use and enjoyment of Plaintiffs of their property....
  
  15. Hill, in his construction of Fountaingate I subdivision, was negligent in that measures were not installed in Fountaingate I subdivision to prevent the increases in runoff generated by construction of 541 Fountaingate I subdivision to not cause flooding of Plaintiffs' property.
  
  WHEREAS: Plaintiffs pray that this Court will rule as follows:
  
  1. That Defendant Hill has created a temporary continuing nuisance in the development and construction of Fountaingate I subdivision which has damaged Plaintiffs' property and interfered with their use and enjoyment of their property,
  
  2. That Hill was negligent and grossly negligent and reckless in the construction of Fountaingate I subdivision thereby causing injury to Plaintiffs' property and interfering with their use and enjoyment of their property,...." Id. at 540-41.

• "Based upon the above-quoted allegations, we have no difficulty finding that the instant action is an 'action[ ] to recover damages for any deficiency in the design, planning, supervision, observation of construction, or construction of an improvement to real property.' [Tenn. Code Ann. § 28-3-202]. At the heart of the plaintiffs' nuisance claim lies the allegation that the drainage system is deficient. Interestingly, the plaintiffs have maintained that the facts supporting their nuisance claim also support a negligence claim. Therefore, the plaintiffs' nuisance claim is barred by the four-year statute of repose." Id. at 541.
• "As a final matter, we find that the 'fraud exception' to the four-year statute of repose, [Tenn. Code Ann. § 28-3-205 (1980)], does not save the plaintiffs' nuisance claim. Section 28-3-205 can prevent § 28-3-202 from applying to a cause of action, if the defendant is 'guilty of fraud in performing or furnishing the design, planning, supervision, observation of construction, construction of, or land surveying, in connection with such an improvement,' or if the defendant 'shall wrongfully conceal any such cause of action.'" Id.
• "Although Hill may not have disclosed the fact that the property is subject to periodic heavy flooding, the plaintiffs do not, and cannot, argue that Hill concealed the cause of action for nuisance. As a matter of fact, this alleged nuisance was apparent, and the plaintiffs were aware of it within weeks of purchasing the property. Further, in order to trigger [Tenn. Code Ann. § 28-3-205] under the theory of fraud, the plaintiffs must allege fraud in connection with the design or construction of an improvement. However, the plaintiffs have not alleged fraud in connection with the drainage system; rather, their allegations of fraud concern whether the defendant withheld information about the property's tendency to flood. Consequently, [Tenn. Code Ann. § 28-3-205] does not prevent application of the statute of repose to the nuisance claim. It is, therefore, untimely." Id.

Other Sources of Note: Tenn. Code Ann. § 28-3-202; Tenn. Code Ann. § 28-3-105.

Recent Cases: Caldwell v. PBM Properties , No. E2008-01991-COA-R3-CV, 2009 WL 3103815 (Tenn. Ct. App. Sept. 29, 2009) (upholding summary judgment on statute of repose notwithstanding that nuisance complained-of was temporary and recurring).

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