Friday, May 29, 2009

Classification of nuisance, whether permanent or temporary, determines when the statute of limitations begins

SUE LEGGETT v. PAUL ALLEN DORRIS, ET AL. (Tenn. Ct. App. February 9, 2009).

This is an appeal from a nuisance case. The plaintiff landowner filed a complaint alleging a continuous nuisance caused by grading completed on adjacent property. The plaintiff alleged that the grading had altered the natural drainage pattern, causing damage to her house. The complaint sought damages and injunctive relief. The defendants sought summary judgment, raising the statute of limitations as a defense. The trial court agreed and granted defendants' motion. genuine issue of material fact remains in dispute, we reverse.

Opinion may be found at the TBA website:

"A proper classification of the nuisance, either temporary or permanent, must be made in order to analyze a statute of limitations defense.  A nuisance claim, because it is an action for an injury to personal or real property, is governed by a three year statute of limitations.  Tenn. Code Ann. § 28-3- 105.  When the nuisance is temporary, however, “the very continuation of the nuisance is a new offense entitling complainants’ to recover damages accruing within the statutory period next preceding, although more than the statutory period has elapsed since the creation of the nuisance.”   When the nuisance is permanent, “the statute of limitations commences to run from the time of the creation of the nuisance.”  Id.

"The characterization of a nuisance is a question of fact.  In this case, the fact is material because it “must be decided in order to resolve the substantive claim or defense at which the motion [for summary judgment] is directed.”  Therefore, the Appellees would need to conclusively establish that the alleged nuisance is permanent.  In their affidavit and statement of undisputed facts, however, the Appellees did not present any evidence on this issue.  Instead, the Appellees only presented evidence to establish a time line of construction.  This time line establishes 

the statute of limitations defense only if the nuisance is permanent." Id.