Chrisman v. Hill Home Development, Inc.

• Decision Date: 26 October 1998
• Citation: 978 S.W.2d 535
• Parties: James and Carolyn CHRISMAN, Plaintiffs-Appellees, v. HILL HOME DEVELOPMENT, INC. and Jim Hill, Defendants-Appellants.
• Court: Tennessee Supreme Court

Page 535

978 S.W.2d 535

James and Carolyn CHRISMAN, Plaintiffs-Appellees, v. HILL HOME DEVELOPMENT, INC. and Jim Hill, Defendants-Appellants.

Supreme Court of Tennessee,

at Knoxville.

Oct. 26, 1998.

Terrill L. Adkins, Knoxville, for Appellants.

Donald E. Overton, Glenna W. Overton, Knoxville, for Appellees.

OPINION

BIRCH, Justice.

We granted permission to appeal under Rule 11, Tenn. R.App. P., ¹ to Jim Hill and Hill Home Development, Inc., the defendants, in order to determine whether they are entitled to summary judgment on the plaintiffs' claims of concealment or nuisance. With regard to the claim of concealment, we find that Hill is entitled to summary judgment because he has demonstrated that the plaintiffs are unable to prove an essential element of their claim. As respects the claim of nuisance, we find that the statute of repose bars that claim, thereby entitling the defendants to summary judgment.

The record indicates that Hill Home Development, a corporation owned by Hill, developed a Knoxville subdivision known as Fountain Gate I. As the developer, Hill Home Development contracted with civil engineering and construction companies for the design and installation of a surface water drainage system. The plaintiffs, James and Carolyn Chrisman, negotiated with Hill and purchased a house and lot in Fountain Gate I on December 8, 1988.

A few weeks after moving in, the plaintiffs noticed heavy flooding in their yard, in the adjacent property, and in the street in front of their house. They describe this flooding as a "lake" in their backyard and a "river" running through the area. In June 1989, approximately six months after moving in, flood water damaged the components of their heat-air conditioning unit which was located next to the house, in a "self-contained concrete area," with a brick retaining wall around it. In June 1992, after a severe storm, water flooded the interior of their home and caused substantial damage.

The plaintiffs filed suit on December 29, 1994, against Hill, Hill Home Development, and several others. ² The plaintiffs claimed, first, that Hill had created a temporary continuing nuisance in the construction of the Fountain Gate I subdivision. In the second claim, they alleged that Hill and Hill Home Development had concealed the fact that the plaintiffs' property is subject to periodic heavy flooding.

In the trial court, all defendants moved for summary judgment; Hill and Hill Home Development based their motion, at least in part, on the contention that the applicable statute of limitations and statute of repose barred the plaintiffs' claims. The trial court granted summary judgment to each defendant. The Court of Appeals affirmed the dismissal of all claims except claims of "fraudulent and negligent concealment" against Hill and nuisance against both Hill and Hill Home Development. The Court of Appeals found that those claims were not time-barred, reversed the trial court's grant of summary judgment, and remanded those claims for trial on the merits.

Hill and Hill Home Development filed an application for permission to appeal. We granted that application to address the following two issues:

(1) Whether the [Court of Appeals] erred in reversing summary judgment in favor of Jim Hill and Hill Home Development concerning allegations they created a continuing nuisance ³; and (2) Whether the [Court of Appeals] erred in reversing summary judgment in favor of Jim Hill in his personal capacity concerning allegations of fraud and negligent concealment. ⁴

Because the decision to grant or deny summary judgment involves questions of law only, we review that decision de novo, with no presumption of correctness. Hembree v. State, 925 S.W.2d 513, 515 (Tenn.1996).

We first address the claim of fraudulent concealment. The allegation is that Hill concealed the fact that the property is subject to periodic heavy flooding. Hill contends that no genuine issue of material fact exists and that he is entitled to judgment as a matter of law, or, in the alternative, that the three-year statute of limitations bars these claims. ⁵ On the other hand, the plaintiffs insist that even if the three-year statute of limitations applies, the damage occurred in June 1992, well within three years of filing suit, and that Hill is not entitled to summary judgment on that basis. Our decision on the dispute of material fact issue pretermits any consideration of the statute of limitations for the fraudulent concealment claim.

In considering the question whether Hill is entitled to judgment as a matter of law on the issue of fraudulent concealment, we must bear in mind that this case is here in the context of summary judgment. Pursuant to Tenn. R. Civ. P. 56.04, summary judgment is granted to the moving party if the moving party complies with Rule 56.03 and the record shows that "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." In determining whether a genuine issue of material fact exists for purposes of summary judgment, courts must view the facts in the light most favorable to the non-moving party and discard all countervailing evidence. If a court determines that a dispute exists as to any material fact or any doubt exists as to the conclusions to be drawn from the facts, the motion must be denied. Byrd v. Hall, 847 S.W.2d 208, 210-11 (Tenn.1993).

The material facts are generally undisputed. The plaintiffs bought the residence in December 1988 and, within weeks of moving in, began noticing a heavy flow of water in their yard and in the street. Chrisman stated in his deposition that from the time he and his wife occupied the residence, a heavy runoff on their property was a "normal thing" after a heavy rain. He also stated that he became concerned about the runoff and its effect on property value as early as 1989, and he spoke to Hill about the problem at that time. Further, in their complaint the plaintiffs alleged that their heat-air conditioning unit, located on the side of the house closest to the drainage easement, had been damaged by water in June 1989.

Hill insisted that summary judgment was appropriate because the plaintiffs presented no evidence to support their allegations of fraudulent concealment. In support of his motion, Hill asserted that the plaintiffs were unable to prove an essential element of their claim. See Alexander v. Memphis Individual Practice Ass'n, 870 S.W.2d 278, 280 (Tenn.1993). Mere conclusory assertions that the non-moving party has no evidence are clearly insufficient. The movant must affirmatively negate an essential element of the non-movant's claim by pointing to uncontradicted evidence in the record which supports the assertion. Robinson v. Omer, 952 S.W.2d 423, 426 (Tenn.1997); Byrd, 847 S.W.2d at 215.

The tort of fraudulent concealment is committed when a party who has a duty to disclose a known fact or condition fails to do so, and another party reasonably relies upon the resulting misrepresentation, thereby suffering injury. Simmons v. Evans, 185 Tenn. 282, 285, 206 S.W.2d 295, 296 (Tenn.1947); Justice v. Anderson County, 955 S.W.2d 613, 616 (Tenn.App.1997). In support of his motion for summary judgment, Hill asserted that the plaintiffs could not prove an essential element of the tort-- knowledge. He pointed to his affidavit in the record stating that he had no knowledge of flooding prior to December 1988. He also pointed to Chrisman's deposition in which Chrisman affirmatively admitted having no proof to support the allegation that Hill had prior knowledge of flooding. Thus, Hill properly supported his motion for summary judgment on this ground.

Once properly supported, the burden shifts to the non-moving party to "set forth specific facts establishing the existence of disputed, material facts which must be resolved by the trier of fact." Bain v. Wells, 936 S.W.2d 618, 622 (Tenn.1997). The plaintiffs can do this by: (1) pointing to evidence in the record which was overlooked or ignored by the moving party; (2) rehabilitating challenged evidence; (3) producing additional evidence; or (4) submitting an affidavit requesting additional time for discovery. See McCarley v. West Quality Food Serv., 960 S.W.2d 585, 588 (Tenn.1998); Byrd, 847 S.W.2d at 215 n. 6.

The plaintiffs filed a response in opposition to Hill's summary judgment motion. We have carefully reviewed that response and fail to find anything addressing Hill's contention that the plaintiffs cannot prove the essential element of knowledge. Viewing the facts in the light most favorable to the non-moving parties and discarding all countervailing evidence, the plaintiffs have not met their burden in response to Hill's properly supported summary judgment motion. Because Hill has demonstrated that the plaintiffs are unable to prove an essential element of their claim of fraudulent concealment, we reverse the Court of Appeals's denial of summary judgment to Hill on that claim.

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.

The defendants insist that the four-year statute of repose, Tenn.Code Ann. § 28-3-202 (1980), bars the nuisance claim. ⁶ 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,...