Watkins v. Tankersley Construction, Inc., No. W2004-00869-COA-R3-CV (TN 6/29/2005), W2004-00869-COA-R3-CV.
| Decision Date | 29 June 2005 |
| Docket Number | No. W2004-00869-COA-R3-CV.,W2004-00869-COA-R3-CV. |
| Parties | RICK WATKINS and ELLEN WATKINS, Individually and f/u/b HOW INSURANCE COMPANY, in Receivership v. TANKERSLEY CONSTRUCTION, INC., O'NEAL TANKERSLEY, Individually and d/b/a TANKERSLEY CONSTRUCTION, CHARLES WALKER ENTERPRISES, CHARLES WALKER, Individually and d/b/a CHARLES WALKER ENTERPRISES, and MUNFORD DEVELOPMENT COMPANY. |
| Court | Tennessee Supreme Court |
Loys A. "Trey" Jordan, III, and Lisa A. Overall, Memphis, Tennessee, for the appellants, Rick Watkins and Ellen Watkins, Individually and f/u/b How Insurance Company, in Receivership.
Pam Warnock Green, Memphis, Tennessee, for the appellees, Charles Walker Enterprises, Charles Walker, Individually and d/b/a Charles Walker Enterprises.
OPINION
This is a negligent construction case involving a statute of repose. The defendant developer bought the residential lot in question in 1992. The developer hired the defendant subcontractor to remove trees and perform the grading work necessary to make the lot suitable for the construction of a house. In 1993, the developer sold the lot to the defendant construction company, which constructed a house on the lot. In 1994, the construction company sold the lot and the house to purchasers not party to this litigation. In 1997, the purchasers sold the house to the plaintiffs in this case. A few weeks after the plaintiffs moved into the house, they noticed cracks in the walls and abnormal settling of the house. In April 2000, the plaintiffs filed this lawsuit against the construction company and the subcontractor for negligent construction of the house and negligent grading of the lot. The defendants filed motions for summary judgment based on the four-year statute of repose set out in T.C.A. § 28-3-202. The trial court granted summary judgment in favor of the defendants based on that statute. The plaintiffs now appeal the trial court's grant of summary judgment only as to the defendant subcontractor. We affirm.
This case involves the issue of whether the remedy for the wrong committed has been legislatively precluded. The chronology of events and relevant facts are undisputed. In the fall of 1992, Munford Development Company ("Munford"), a corporation, purchased the residential lot at issue in Munford, Tennessee. Defendant/Appellee Charles Walker ("Walker") was a shareholder and the president of Munford at the time.1 Defendant/Appellee Charles Walker Enterprises ("Walker Enterprises") is a sole proprietorship owned by Walker. Walker Enterprises performs bulldozer and elevation work for construction job sites. Munford paid Walker Enterprises to do dozer and elevation work on the residential lot, and to fill the land to make it suitable as a building site for a house. Neither Walker, individually, nor Walker Enterprises ever had any ownership interest in the lot or the development. On November 5, 1993, Munford sold the lot at issue to Tankersley Construction, Inc. ("Tankersley Construction"). Tankersley Construction built a house on the lot that became 130 Kilkenny Drive. The house was substantially completed by March 1994.
On March 25, 1994, Tankersley sold the lot and house to John and Mary Woods (collectively, "the Woods"). On February 3, 1997, the Woods sold the lot and house to Plaintiffs/Appellants Rick and Ellen Watkins (collectively, "the Watkins").2 The Watkins moved into the house shortly thereafter.
On April 12, 1997, only weeks after they moved into the house, the Watkins discovered structural damage to the house resulting from abnormal settlement. The walls of the house had significant cracks, which caused leaks and other serious problems. The Watkins began to try to determine the cause of the structural damage to their home. Finally, they obtained an inspection of the lot on which the house was built. They found that, when the lot was filled and graded in preparation for the construction, biodegradable materials such as tree stumps and roots were used as fill. When this matter began to decay, the house settled unevenly, resulting in the structural damage.
On April 3, 2000, the Watkins filed the instant lawsuit against Munford, Tankersley Construction, O'Neal Tankersley, individually and d/b/a Tankersley Construction, Walker Enterprises, and Walker, individually and d/b/a Walker Enterprises, for their negligence in the development of the property and the improper grading and filling of the building site.3 The Watkins asserted in their complaint that, in the filling of the site, the soil impaction was improper, and that the site was filled with biodegradable materials that had decayed over time. When the fill material decayed, the complaint alleged, the house on the site began to settle at an abnormal rate. Mrs. Watkins later filed an affidavit describing the manifestations of the accelerated settlement of the house. In the affidavit, she said that cracks began to appear all over the home, with new cracks appearing "[e]ach and every day," and with the house audibly "cracking as it settles." She stated that the abnormal settling of her home had resulted in significant leaks throughout the home, and necessitated the rebuilding of the front porch, the replacing of supports, and other remedial measures. In the affidavit, Mrs. Watkins asserted that the damage to the house was caused by the instability of the lot, and that the house is now unmarketable due to that instability.
All parties filed motions for summary judgment. The defendants argued that the Watkins' lawsuit was barred by the four-year statute of repose found in Tennessee Code Annotated § 28-3-202:
Limitation of actions.— 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.
Tenn. Code Ann. § 28-3-202 (2000). The language in the statute says that it applies to all actions involving defects "in the design, planning, supervision, observation of construction, or construction of an improvement to real property." In addition, the four-year time limitation begins to accrue "after substantial completion of such an improvement." Id.
On December 22, 2003, the trial court held a hearing on defendant Munford's motion for summary judgment. On December 30, 2003, the trial court entered an order granting summary judgment to Munford based on the four-year time limitation set out in Section 28-3-202. On March 1, 2004, the trial court held a hearing on the motions for summary judgment filed by the Watkins, Tankersley/Tankersley Construction, and Charles Walker/Walker Enterprises (collectively, "Walker defendants"). At the conclusion of the hearing, the trial court entered an order granting summary judgment in favor of Tankersley/Tankersley Construction and the Walker defendants, also based on the four-year statute of repose. The trial court found that the statute of repose was applicable to an action such as this, in which damages are sought for deficiencies in an improvement to real property caused by soil instability. The trial court reasoned that, because the house was substantially completed in March 1994, and the complaint was filed over six years later in April 2000, the lawsuit was untimely under the statute's four-year time limitation. The Watkins now appeal, challenging only the grant of summary judgment in favor of the Walker defendants.
On appeal, the Watkins argue that the trial court erred in ruling as a matter of law that the grading and filling of their property constituted the "construction of an improvement to real property," thus subjecting their cause of action to the four-year time limitation in Section 28-3-202. They concede that, if the grading work performed by the Walker defendants constitutes the construction of an improvement to real property, then their suit is time barred. Therefore, the sole issue in this appeal is whether the trial court erred in finding that the Walker defendants' actions constituted the construction of an improvement to real property, and the resulting conclusion that Section 28-3-202 governs the Watkins' claims.4
We review the trial court's grant of summary judgment de novo with no presumption of correctness. Warren v. Estate of Kirk, 954 S.W.2d 722, 723 (Tenn. 1997). Summary judgment is appropriate where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show 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." Tenn. R. Civ. P. 56.04. This case presents an issue of statutory interpretation, which is also reviewed de novo. Honsa v. Tombigbee Transp. Corp., 141 S.W.3d 540, 542 (Tenn. 2004). In construing a statute, we must "ascertain and give effect to the legislative intent without unduly restricting or expanding a statute's coverage beyond its intended scope." Id. (quoting Houghton v. Aramark Educ. Res., Inc., 90 S.W.3d 676, 678 (Tenn. 2002) (quoting Owens v. State, 908 S.W.2d 923, 926 (Tenn.1995))). Legislative intent can be determined "from the natural and ordinary meaning of the statutory language within the context of the...
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