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How long can I wait to bring a claim for negligent construction or design?

There are many time deadlines in the law. In Tennessee, attorneys know that the statute of limitations (a type of deadline) for injury claims is different that for contract claims. However, for claims involving negligent construction or design of an improvement to real estate, there is another important deadline called a statute of repose.

While a statute of limitations can be extended under certain circumstances, a statue of repose is more strictly enforced and creates an absolute barrier to claims brought after that date. For the construction or design of improvements to a home or other property, the legislature passed Tenn. Code Ann. § 28-3-202 which states:

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.

The four year statute of repose begins to run on the date of substantial completion as opposed to the date of the injury or damage. Caldwell v. PBM Properties, 310 S.W. 3d 818, 823 (Tenn. Ct. App. Sept. 29, 2009)(permission to appeal denied Mar. 15, 2010). The statue of repose is "'substantive ... and extinguish[es] both the right and remedy...'" Id. "'Thus, the effect is to prevent what might otherwise be a cause of action from ever arising... The injured party literally has no cause of action.'" Id. Moreover, "the traditional three-year statute of limitations for injury to property found at Tenn. Code Ann. § 28-3-105 (2000), cannot extend the existence of a cause of action outside the ceiling "superimposed" by Tenn. Code Ann. § 28-3-202. Id. at 823-24 (citing Watts v. Putnam County, 525 S.W. 2d 488, 491 (Tenn.1975).

Substantial completion is defined as the date upon which the improvement could be used for that which it was intended. Counts Co. v. Praters, Inc., 392 S.W.3d 80, 86 (Tenn. Ct. App. 2012). The fact that someone attempted repairs after completion of the project does not change the date of substantial completion. Id.

As a result, it is important for people with claims involving poor design, whether it be a breach of contract or an injury claim, to consult with an attorney as soon as the defect is found.

Franklin to Condemn Property on Hillsboro Road and Mack Hatcher

Condemnation is a constant fear for many homeowners and businesses in Franklin and Brentwood. Williamson County's growth leads to bigger, wider roads. The Tennessean reports that the City of Franklin has approved plans to condemn property along Hillsboro Road Mack Hatcher Road in Williamson County so that it can be widened.

Our condemnation and eminent domain attorneys make sure the government abides by the Constitution by paying the landowner "just compensation." Unfortunately, the condemning authorities often overlook the true amount of damages done by taking property.

Price per square foot is one measure of damage that must be paid to the landowner. And it must be fair. Appraisers usually rely upon what they call "comparable sales" in determining the value of land taken. What's "comparable" though? Is flat land worth more that hillside land? Land that can be developed more easily is certainly better than land that can't be built on.

This issue recently came up in a case we tried. See this post about the case. Usually the government will find an expert appraiser to produce comps that yield a lower result. We work with independent appraisers to find the true value.

But what else is there? In road widening cases there are also proximity damages, the loss in value to the rest of the property as a result of a busy road moving closer to your front door. These are called incidental damages and are often over looked by hired gun experts. It cannot be "just compensation" without money to compensate each and every type of damage.

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City of Brentwood ordered to pay landowner after condemning land in Williamson County

Some people don't know that our Nashville law firm represents landowners in middle Tennessee condemnation cases. Here is an example of a recent case:

The City of Brentwood condemned .76 acres on the hilltop of George Cawthon's Brentwood property for the purposes of constructing a 2.5 million gallon concrete water tank. The land was vacant hilly property covered with trees. I had the pleasure of representing Mr. Cawthon and we adamantly disputed Brentwood's calculation of damages.

Brentwood hired an appraiser to determine the value of the land taken and whether there were any incidental damages. That appraiser determined that the hilltop property in Brentwood was less valuable than surrounding flat properties and valued the portion of land taken at $36,000. He also decided that there were no incidental damages because there was no market research or data to support the allegation that a water tank caused aesthetic damages and decrease in value to the remainder of the property.

I hired an appraiser William "Bill" Parrish who testified that buyers in Williamson County pay a premium for hill side and hilltop land for large homes and therefore it is worth more than lower lying property. Mr. Parrish testified that the value of the land taken was $43,200. He also testified that the water tank caused aesthetic damages to the remainder causing $194,850 in incidental damages.

The case proceeded to a jury trial. Both experts conceded that there was no market research or data that proved incidental damages from water tanks. However, only our expert had a method of calculating damages to the remainder of the Brentwood property next to the water tank.

After several hours of deliberation, the jury returned a verdict in favor of the landowner in the amount of $238,050, the exact amount of damages we sued for. $35,706 in interest was added to the verdict.

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