Michael T. and Dana N. Bernier v. Robert ("Shawn") and Jamie Morrow ( 2013 )

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
March 27, 2013 Session
MICHAEL T. and DANA N. BERNIER v. ROBERT (“SHAWN”) and
JAMIE MORROW
Direct Appeal from the Circuit Court for Sumner County
No. 2011CV234 C.L. Rogers, Judge
No. M2012-01984-COA-R3-CV - Filed April 26, 2013
This case presents the question of whether certain notes on a final subdivision plat constitute
restrictive covenants, which prevent the purchasers of property in the subdivision from
installing an experimental wetland sewage disposal system on their property or on an
easement for the benefit of their property. The trial court concluded that the plat notes
constitute restrictive covenants preventing the installation, and permanently enjoined the
purchasers from installing or constructing such a system on their own property or on the
easement. We affirm and remand.
Tenn. R. App. P. 3. Appeal as of Right; Judgment of the Circuit Court Affirmed and
Remanded
J. S TEVEN S TAFFORD, J., delivered the opinion of the Court, in which A LAN E. H IGHERS,
P.J.,W.S., and H OLLY M. K IRBY, joined.
Philip C. Kelly and Gwynn K. Smith, Gallatin, Tennessee, for the appellants, Robert
(“Shawn”) and Jamie Morrow.
William L. Moore, Jr., Gallatin, Tennessee, for the appellees, Michael T. and Dana N.
Bernier.
OPINION
I. Background
The Plaintiffs/Appellees Michael T. (“Shawn”) Bernier and Dana Bernier (together,
“the Berniers” or “Appellees”) own certain lake-front property on Odoms Bend Road in
Gallatin, Tennessee. In 2009, the Berniers subdivided the property pursuant to a Final
Subdivision Plat (“Final Subdivision Plat” or “Plat”) recorded in the Plat Book in the
Register’s Office for Sumner County, Tennessee. The Bernier’s home sits on Lot #1 of the
property. The Berniers conveyed Lot #2 to the Defendants/Appellants Robert Shawn
Morrow and Jamie Morrow (together, “the Morrows” or “Appellants”). The transfer from
the Berniers to the Morrows was made pursuant to a warranty deed of record, which was
also recorded in the Register’s Office for Sumner County, Tennessee. The warranty deed
states, in pertinent part:
Being Lot No. 2 on the Final Subdivision Plat for Michael T.
Bernier and wife, Dana N. Bernier, a plat of which is of record
in Plat Book 26, page 208, Register’s Office of Sumner County,
Tennessee, to which reference is hereby made for a more
complete description of said lot.
The Final Subdivision Plat Notes referenced in the deed state, in pertinent part:
11. A portion of lot #3 shown is to be used for the subsurface
sewage disposal of lot #2, as shown in the respective easement
provided.
* * *
14. The shaded areas are reserved for the installation of the
subsurface sewage disposal system. . . .
15. Lot #2 is approved for a maximum three (3) bedroom
residence with use of a conventional subsurface sewage
disposal system.
In order to build a home on the property, a sewage system was required. However,
the soil conditions of Lot #2 proved unsuitable for the installation of a conventional
subsurface sewage disposal system. Accordingly, the Berniers conveyed to the Morrows a
subsurface sewage disposal easement for the use and benefit of Lot #2. The easement was
located on a portion of Lot #3, which the Berniers also owned. The Morrows sought, and
obtained from the Tennessee Department of Environment and Conservation Division of
Ground Water Protection (“TDEC”) a permit to install an underground low pressure pipe
sewage system (“low pressure system”) on Lot #3. The low pressure system was installed
and is presently in use by the Morrows for the benefit of Lot #2. The TDEC further required
that the land be suitable for a secondary system, should the need for one ever arise.
However, during installation of the primary system, it was determined that the soil in the
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area was unsuitable for the secondary low pressure system. Accordingly, the Morrows
sought and obtained from the TDEC permission to install an experimental wetland sewage
disposal system for use as the secondary waste disposal system for Lot #2.
To prevent the installation of the wetland sewage disposal system, on March 2, 2011,
the Berniers filed a Complaint and Application for Temporary Restraining Order in the
Sumner County Circuit Court. The Berniers argued that the wetland sewage disposal system
was in violation of the restrictive covenants contained on the Final Plat. The Berniers
asserted that these restrictive covenants required the Morrows to install a “conventional,”
“subsurface” sewage system. The Berniers attached to their complaint a letter from Mark
Dew, a Certified Tennessee Soil Consultant. In his letter, Mr. Dew stated that the
experimental wetland system sought by the Morrows was not a subsurface system because
a portion of the system was above ground. In addition, Mr. Dew noted that, without proper
maintenance, wetland systems can cause odors and above ground exposure to wastewater.
The trial court granted the Berniers’ request for an emergency temporary restraining
order on March 2, 2011. A hearing was scheduled to determine whether a temporary
injunction should be granted on March 9, 2011. In advance of the temporary injunction
hearing, on March 8, 2011, the Bernier’s filed a Memorandum of Law in support of their
position. In the Memorandum, the Berniers’ again argued that the wetland system was not
a “subsurface” system as required by the Final Subdivision Plat.
On March 11, 2011, the Berniers amended their complaint to add a cause of action
for breach of other subdivision restrictions, as well as to name Phillip D. Dickerson as a
defendant to the action. Mr. Dickerson created a map of the area that erroneously stated that
the area was suitable for a secondary low pressure system. The complaint was later amended
to remove Mr. Dickerson as a defendant and the Berniers’ claim against him was non-suited.
On March 23, 2011, the trial court entered an order enjoining the Morrows from
constructing the wetland sewage system and requiring the Berniers to pay a bond in the
amount of $1,000.00.
On March 31, 2011, the Morrows filed an answer to the Berniers’ complaint. In their
answer, the Morrows denied that the wetland sewage system was above ground, but asserted
that it was, in fact, a subsurface sewage system. In addition, the Morrows denied that Mr.
Dew was competent to testify as to an experimental wetland sewage system because he
admitted he had only encountered one such system throughout his career. On May 5, 2011,
the Morrows also sought leave to file a third-party complaint against Mr. Dickerson. On the
same day, the trial court entered an agreed order allowing the third-party complaint. The
Morrows subsequently filed their complaint, which alleged that Mr. Dickerson was negligent
in mapping the area.
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On May 16, 2011, the Berniers filed a second motion for a Temporary Injunction.
This motion sought an injunction to prevent the Morrows from constructing an experimental
wetland sewage disposal system on Lot #2, the lot the Berniers had conveyed to the
Morrows for construction of a home. The Berniers raised the additional argument that the
Final Subdivision Plat Notes specifically require that the sewage system be “conventional,”
and argued that an experimental wetland sewage system does not meet that requirement.
The Morrows filed a response to the motion on May 19, 2011, agreeing that they had
been approved by the TDEC to install a wetland system on their own lot, Lot #2, but
denying that the Final Subdivision Plat in any way restricted their ability to do so.
On May 24, 2011, the Morrows filed a counter-complaint against the Berniers,
alleging that they had suffered damages for breach of warranty, negligence and intentional
and negligent misrepresentation from the Bernier’s refusal to consent to the Morrows
constructing the needed secondary sewage system on their easement and their own lot, as
well as by failing to ensure that the soil in the property conveyed to them was suitable for
the stated purpose of the lot, i.e., to build a three-bedroom home with a sewage system. On
June 7, 2011, the Berniers filed an answer to the counter-complaint, denying the material
allegations contained therein. On the same day, the Berniers also filed a cross-claim against
third-party defendant Mr. Dickerson. The Morrows were later allowed to amend their
counter-complaint against the Berniers to include more specific factual allegations.
On October 19, 2011, Mr. Dickerson filed a Motion for Summary Judgment, arguing
that it was undisputed that he prepared the soil map in accordance with the recognized
standard of professional care for those in his field. The Morrows responded with an affidavit
from a licensed soil scientist, who opined that Mr. Dickerson’s conduct fell below the
recognized standard of care. Eventually, the Morrows voluntarily dismissed their claim
against Mr. Dickerson and Mr. Dickerson obtained summary judgment in his favor with
regard to the Berniers’ claim. The Berniers do not appeal this ruling. Thus, Mr. Dickerson
is not a party to this appeal.
On March 19, 2012, the Berniers again amended their complaint to add a claim of
anticipatory nuisance and to clarify their other claims. On June 1, 2012, the Morrows filed
a Motion for Summary Judgment based on the Bernier’s alleged failure to state a claim upon
which relief may be granted. Attached to the motion was the affidavit of the Director of the
TDEC, Britton Dotson, who stated that an experimental wetland sewage system is, in fact,
a subsurface system. On August 1, 2012, the trial court granted partial summary judgment
in favor of the Morrows, concluding that the Berniers failed to state a claim with regard to
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the express subdivision restrictions of record or the anticipatory nuisance claim.1
Accordingly, the Bernier’s only remaining claim involved the implied restrictive covenants
allegedly created by the Final Subdivision Plat.
The trial court held a bench trial on the Bernier’s one remaining issue, as well as the
Morrow’s counter-claim, on July 30, 2012. At trial, the Morrows gave oral notice of their
intent to voluntarily dismiss their counter-claim. On August, 7, 2012, the trial court entered
an order voluntarily dismissing the Morrows’ counter-claim against the Berniers. On August
9, 2012, the trial court entered a final order granting the Bernier’s a permanent injunction
preventing the Morrows from constructing an experimental wetland sewage system on either
Lot #2, or on the easement on Lot #3, unless and until the Berniers agree to amend the Final
Subdivision Plat. In the trial court’s oral findings, incorporated into the final order by
reference, the trial court stated, in pertinent part:
Now, the subdivision plat, the representation, the deed of
[the Morrows] all have a condition in there that the subsurface
sewage disposal system indicated lot two is approved naturally
for a three bedroom residence with the use of a conventional
subsurface sewage disposal system.
The Court finds that this wetland experimental system is
not, based on the prior testimony of the State, also the
descriptions of these systems, is not a conventional subsurface
sewage disposal system. And then it states that a portion of lot
three, again plat condition, is to be used for a subsurface sewage
disposal system. . . . That’s what everybody thought they were
going to get, and refers to it as subsurface sewage disposal
easement for the benefit of lot two.
The plat is applicable to lot two, the deed is. It’s a
condition set out. It can only be changed in the Court’s opinion
by the owner of lot three, which remains [the Berniers] . . . .
Thus, the trial court held that the Notes on the Final Subdivision Plat created a restrictive
covenant that any sewage disposal system installed for the benefit of Lot #2, either on Lot
#2, or on the easement on Lot #3, be conventional, and further held that the proposed
wetland sewage disposal system, being experimental, did not meet that requirement. The
Morrows appeal.
II. Issues Presented
1
The Berniers do not appeal the trial court’s summary dismissal of these claims.
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The Morrows raise two issues for review, as slightly restated from their brief:
1. Whether the plat notes on the Berniers’ subdivision plat
or the easement on Lot #3 amount to restrictive
covenants, which prohibit the Morrows’ installation of
a wetland sewage disposal system on their easement?
2. Even if the subdivision plat notes are construed as
restrictive covenants, whether the covenants go so far as
to bar the Morrows from constructing a wetland sewage
disposal system on their own lot, Lot #2?
In their brief, the Berniers also seek damages for a frivolous appeal.
III. Standard of Review
This case was tried by the trial court without a jury. We review the trial court’s
findings of fact de novo with a presumption of correctness, unless the evidence preponderates
otherwise. Tenn. R. App. P. 13(d). No presumption of correctness, however, attaches to the
trial court’s conclusions of law and our review is de novo. Blair v. Brownstone, 197 S.W.3d
681, 684 (Tenn. 2006) (citing Bowden v. Ward, 27 S.W.3d 913, 916 (Tenn. 2000)). The
issues in this case involve the existence and construction of restrictive easements. “The
construction of restrictive covenants, like other written contracts, is a question of law.”
Massey v. R.W. Graf, Inc., 277 S.W.3d 902, 908 (Tenn. Ct. App. 2008) (citing Maples
Homeowners Ass'n, Inc. v. T & R Nashville Ltd. P'ship, 993 S.W.2d 36, 38–39 (Tenn. Ct.
App. 1998)).
IV. Analysis
In this case, the Morrows argue that the trial court erred in concluding that a
restrictive covenant exists preventing them from installing a wetland sewage disposal system
on their easement on Lot #3 or on their own lot, Lot #2. The dispute concerns whether the
Notes on the Final Subdivision Plat constitute restrictive covenants on the use of the
property, and if so, whether those restrictive covenants prevent the installation of a wetland
sewage disposal system. We begin first with a discussion of whether the Notes on the Final
Subdivision Plat constitute restrictive covenants.
The Restatement (Third) of Property defines a “restrictive covenant” as “ a negative
covenant that limits permissible uses of land.” Restatement (Third) of Property (Servitudes)
§ 1.3 (2000). Tennessee courts have recognized and enforced implied restrictive covenants
under certain circumstances. See generally Stracener v. Bailey, 737 S.W.2d 536 (Tenn. Ct.
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App. 1986). As explained by the Tennessee Supreme Court:
Ordinarily when the owner of the tract of land subdivides it and
sells different lots to separate grantees, and puts in each deed
restrictions upon the use of the property conveyed, in
accordance with the general building, improvement or
development plan, such restrictions may be enforced by any
grantee against any other grantee. Likewise, the property
remaining in the hands of the vendor may also be held in equity
to be subject to a servitude so as not to be used in a manner
different from that contained in the restrictions.
Land Developers, Inc. v. Maxwell, 537 S.W.2d 904, 912 (Tenn. 1976). It is undisputed that
no restrictive covenants are recorded on the deed conveying Lot #2 to the Morrows. It is
well-settled, however, that “[r]estrictive covenants may be implied by reference to a plat.”
Hughes v. New Life Development Corp., 387 S.W.3d 453, 484 (Tenn. 2012); see also
Stracener, 737 S.W.2d at 539 (“The weight of authority supports a holding that equitable
servitudes may be created by restrictions noted on a plat with reference to which lots are
sold.”). Thus, “a plat may be utilized in establishing implied restrictive covenants if the deed
of the party seeking to impose the restriction refers to the plat.” Arthur v. Lake Tansi Vill.,
Inc., 590 S.W.2d 923, 929 (Tenn. 1979). “A deed and the plat which includes the property
granted must be read together, and whatever appears on the plat is to be considered as a part
of the deed.” 20 Am. Jur. 2d Covenants, Etc. § 161.
As discussed above, the deed in this case specifically references the Plat, noting that
reference to the Plat “is hereby made for a more complete description of said lot.” The
Morrows, however, point to the affidavit of Carroll Carman, the Tennessee Licensed
surveyor who drew the Final Subdivision Plat, to argue that the Notes contained therein
were not intended as restrictive covenants. In his affidavit, Mr. Carman stated that the Notes
on the Plat referring to the “conventional subsurface sewage system” were placed on the
map for descriptive purposes and to satisfy TDEC rules. According to the Morrows, Mr.
Carman’s affidavit shows that the Plat Notes were not “intended to mandate, nor did [they]
serve to mandate, the specific type of sewage disposal system that may ultimately be
permitted.” The Morrow’s reliance on this parol evidence, however, is misplaced without
some finding of ambiguity in the plain language of the Plat. Instead, this Court must apply
the well-settled rules of contract interpretation:
Rules governing the construction of covenants imposing
restrictions on the use of land are generally the same as those
applicable to any contract or covenant, including the rule that
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where there is no ambiguity in the language used, there is no
room for construction, and the plain meaning of the language
governs. Primarily, the question is one of intention, subject to
the further principle that restrictive covenants are strictly
construed in favor of the free use of property.
20 Am. Jur. 2d Covenants, Etc. § 168 (footnotes omitted). As recently explained by this
Court:
Because the instant case involves the interpretation of
restrictive covenants, we apply well-established rules of
construction and law in order to construe the terms of the
covenants. Parks v. Richardson, 567 S.W.2d 465, 467 (Tenn.
Ct. App. 1977). . . . Thus, if the “meaning of the covenant is
reasonable and unambiguous, there is no need to seek further
clarification outside its language.” Shea v. Sargent, 499 S.W.2d
871, 874 (Tenn. 1973). If the language of the restrictive
covenant is unambiguous, and its plain meaning is fair and
reasonable, then its terms may not be altered or varied by parol
evidence. Hicks, 978 S.W.2d at 547–48 (citations omitted).
However, if [parol evidence is] needed, then we would also
interpret [the covenants] in compliance with the
well-established rules governing interpretation of other written
contracts, where the primary goal is to ascertain the intention of
the parties as expressed by the language of the document itself.
See Hicks v. Cox, 978 S.W.2d 544, 547 (Tenn. Ct. App. 1998).
The words of a contract must be given their usual and ordinary
meaning. Hicks, 978 S.W.2d at 547 (citing Aldridge v. Morgan,
912 S.W.2d 151, 153 (Tenn. Ct. App. 1995); Rainey v.
Stansell, 836 S.W.2d 117, 119 (Tenn. Ct. App. 1992)).
Grand Valley Lakes Property Owners Ass'n, Inc. v. Burrow, 376 S.W.3d 66 (Tenn. Ct.
App. 2011); see also 20 Am. Jur. 2d Covenants, Etc. § 169 (noting that the surrounding
circumstances are only “taken into consideration in determining the intention in some cases,
where it is necessary to do so by reason of the uncertainty or ambiguity in the language
giving rise to the restriction”).
From our review of the Final Subdivision Plat, we must conclude that the Plat Notes
unambiguously create restrictive covenants in this case. As previously noted, a restrictive
covenant is a covenant or agreement that restricts the use of the land. The Notes on the
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Subdivision Plat contain clear restrictions on the use of the land, including limiting
construction on easement areas, requiring compliance with applicable performance standards
and subdivision regulations, and, importantly, reserving an easement on an area of the
property contained on the Plat for the installation of the subsurface sewage disposal system
for the benefit of Lot #2. Indeed, the Morrows do not dispute that the easement was
conveyed to them solely as a result of the drawings and Notes contained on the Final
Subdivision Plat. It would be unreasonable to conclude that the other Notes contained on
the Plat do not also operate to affect the property at issue or bind the parties. Further, we
note nothing in the plain language of the Final Subdivision Plat or the warranty deed to
disregard the well-settled rule that Notes to a subdivision plat may be considered restrictive
covenants on the use of the property.
Indeed, from our research, none of the cases in which Tennessee Courts have
concluded that Plat Notes do not constitute restrictive covenants are analogous to the present
case. For example, in Arthur v. Lake Tansi Village, Inc., the Tennessee Supreme Court
affirmed the Court of Appeals’s ruling that a plaintiff was not entitled to rely on certain
recorded plats when: (1) the plats at issue were not included as a part of the record on
appeal; and (2) the plats relied on by the plaintiff did not include the plaintiffs own property
and, thus, were not incorporated by reference into the plaintiff’s deed of conveyance.
Arthur, 590 S.W.2d at 929. In a recent case, the Tennessee Supreme Court likewise
concluded that no restrictive covenants limiting development of portions of a subdivision
to forest preserves were created by the notes on the subdivision plat because the plat notes
that allegedly contained the mention of the preserves were illegible. See Hughes, 387
S.W.3d at 483–4. As explained by the Supreme Court:
[T]he 2002 plat in this case bears no legible reference to
forest preserves. Sheets 2 through 5, which contain no illegible
writing, contain no reference whatsoever to forest preserves.
Sheet 1 contains virtually no legible writing with respect to the
tract, and not surprisingly contains no legible reference to an
East Preserve or a West Preserve. Thus, having examined all
five sheets comprising the 2002 plat, we can only conclude that
the 2002 plat does not clearly designate an East Preserve or a
West Preserve . . . .
Id. at 484. In this case, however, the Final Subdivision Plat contains clearly legible
restrictions on the use of the property and contains a clear reference to the property owned
by the Morrows. There is no dispute that the Morrows had notice of the Notes on the Final
Subdivision Plat prior to the conveyances at issue. In addition, the Plat is clearly referenced
in the deed of conveyance. Thus, we must conclude that the Notes on the Final Subdivision
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Plat at issue unambiguously place restrictive covenants on the use of land contained therein
(i.e., Lot# 2 and Lot #3). We next turn to consider whether the restrictive covenants at issue
operate to bar construction of the proposed wetland sewage disposal system on both Lot #2
and Lot #3.
The Morrows argue that even if the Plat Notes are considered restrictive covenants,
a proper construction of the Notes does not prevent the installation of a wetland sewage
disposal system on either the easement on Lot #3, or on their own property, Lot #2. As
previously discussed, the construction of a restrictive covenant is a question of law. In
construing restrictive covenants, however, we must keep in mind that: “[b]ecause restrictive
covenants are in derogation of the fundamental right of free use and enjoyment of real
property, they are not favored under Tennessee law.” Massey, 277 S.W.3d at 908 (citing
Williams v. Fox, 219 S.W.3d 319, 324 (Tenn. 2007)). As explained by this Court:
Restrictive covenants are strictly construed. Arthur [v. Lake
Tansi Vill., Inc., 590 S.W.2d 923, 927 (Tenn. 1979)].
Any doubt concerning the applicability of a restrictive
covenant will be resolved against the restriction, Richards v.
Abbottsford Homeowners Ass'n, 809 S.W.2d 193, 195 (Tenn.
Ct. App. 1990) and, likewise, any ambiguity in the terms of the
restrictive covenant will be resolved against the restriction.
Parks v. Richardson, 567 S.W.2d 465, 467–468 (Tenn. Ct.
App. 1977). Similarly, when the terms of a covenant may be
construed more than one way, the courts must resolve any
ambiguities against the party seeking to enforce the restriction
and in a manner which advances the unrestricted use of the
property. Hillis v. Powers, 875 S.W.2d 273, 275–76 (Tenn. Ct.
App. 1993); Parks, [567 S.W.2d] at 468.
Massey, 277 S.W.3d at 908. However,
[s]uch construction in favor of the unrestricted use . . .
must be reasonable. The strict rule of construction as to
restrictions should not be applied in such a way as to defeat the
plain and obvious purposes of a restriction, nor will the rule of
strict construction render covenants unenforceable. Similarly,
the rule that a deed must be construed most strictly against the
grantor has no application where in the light of the surrounding
circumstances the meaning of the language of the deed is plain.
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20 Am. Jur. 2d Covenants, Etc. § 170 (footnotes omitted).
As previously discussed, we first turn to the language of the restrictive covenants at
issue. In pertinent part, the Notes on the Final Subdivision Plat state:
11. A portion of lot #3 shown is to be used for the subsurface
sewage disposal of lot #2, as shown in the respective easement
provided.
* * *
14. The shaded areas are reserved for the installation of the
subsurface sewage disposal system. . . .
15. Lot #2 is approved for a maximum three (3) bedroom
residence with use of a conventional subsurface sewage
disposal system.
The Berniers argue that Note 15's statement that Lot #2 is approved for a home with a
conventional subsurface sewage system amounts to a requirement that any home built on Lot
#2 use only a conventional subsurface sewage system. It is undisputed that the wetland
sewage disposal system sought by the Morrows is an experimental, rather than a
conventional system.2 Accordingly, the Berniers argue that the wetland sewage disposal
system is prohibited pursuant to the restrictive covenants above. The Berniers rely on the
case of Stracener v. Bailey, 737 S.W.2d 536 (Tenn. Ct. App. 1986) to support their
position. In Stracener, the defendant-developer subdivided a large tract of land pursuant to
a subdivision plat, which was filed with in the county register’s office. The plat contained
an area that was marked as a “future park.” The plaintiffs purchased one of the subdivided
lots. When the developer moved to develop the property marked as a future park into more
residences, purchasers of certain subdivided property sued to enjoin the defendant-developer
from developing the area into anything but a park. Id. at 537. The dispositive question in the
2
The trial court, in its findings of fact and conclusions of law, made an express finding that the
wetland sewage disposal system was not a conventional system based on the testimony of TDEC Director
Dotson. Mr. Dotson testified that a wetland system is an experimental system and does not qualify as a
conventional system. Nothing in the record preponderates against this finding, nor do the Morrows appear
to take issue with the trial court’s conclusion. Indeed, Tennessee Compiled Rules and Regulations
1200-01-06-.16 defines an experimental sewage system as one “in lieu of those provided herein,” such as the
conventional systems defined by Tennessee Compiled Rules and Regulations 1200-01-06-.02
(““Conventional Subsurface Sewage Disposal System” means a disposal system that pre-treats sewage by
use of a septic tank and applies effluent to the soil as described in Rule 1200-01-06-.07.”).
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case was whether the note on the plat, marking the area as a “future park,” was sufficient to
create a restriction on the use of the property for anything other than a park. The Court of
Appeals concluded that the note on the recorded plat, designating the area as a future park,
was sufficient to create a restrictive covenant preventing the area at issue from being
developed into anything other than a park. Id. at 538–39. In Stracener, the restrictive
covenant at issue did not contain a negative limitation (e.g., this property may not be used
for residential purposes), but rather contained an affirmative restriction on the use of the
property by expressly naming the future use (i.e., a future park). Id. Thus, the Court of
Appeals concluded that an express designation as to what use the property may be put
created a restriction on the land against any use that was inconsistent with that restriction.
Id. Similarly, in this case, the Berniers argue that the Plat Note approving Lot #2 for a
conventional subsurface sewage system is a restrictive covenant, which prevents the
Morrows from installing any sewage system that does not meet that requirement, i.e. a non-
conventional system.
In contrast, the Morrows contend that the trial court interpreted Note 15 on the Final
Subdivision Plat “too narrowly” in concluding that it required the use of a “conventional
subsurface sewage system,” to the exclusion of all other types of systems. The Morrows
argue that because the construction of the wetland system is consistent with the purpose of
the easement, to allow the Morrows to build a home on Lot #2 with an adequate, state-
approved sewage system, the trial court erred in enjoining the Morrows from doing so. The
Morrows rely on two Tennessee Supreme Court cases to support their contention that
preventing their installation of the wetland sewage disposal system is to unreasonably
expand, by implication, the restrictive covenants contained on the Final Subdivision Plat.
First, in Turnley v. Garfinkel, 362 S.W.2d 921 (Tenn. 1962), the Tennessee Supreme Court
held that an express restriction that “[n]ot more than one dwelling be built on any lot” did
not operate to bar a property owner from re-subdividing his own lot into two, thereby
allowing two homes to be built on the original lot. The Supreme Court explained:
Since the covenants in this case contain no express
restriction against a resubdivision of any of the lots, they cannot
be extended by implication to prevent complainants'
re-subdivision of their lot. Nor can such restriction be implied
from the conveyance of these lots with reference to this
recorded plat showing the dimensions of the lots.
While we have no decision upon this particular point, we
think it is generally well settled on principle and authority,
which we deem sound and are content to follow, that such a
conveyance of the lots by reference to a recorded plat raises no
implied covenant that the lots shall remain as shown on the
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map, or that they may not later be subdivided.
Id. at 923. In a more recent case, Williams v. Fox, 219 S.W.3d 319 (Tenn. 2007), the
Tennessee Supreme Court likewise held that a covenant restricting the construction or
installation of “mobile homes” or “trailers” on the property could not be extended by
implication to restrict the construction or installation of “modular homes.” The Court
reasoned that the plain language of the covenant did not expressly restrict the installation of
modular homes, and that modular homes were defined by statute and case law as separate
from mobile homes or trailers. Id. at 326. These cases, however, are inapposite to the case-
at-bar. In both Turnley and Williams, one property owner argued that the express covenants
at issue in the case should be extended by implication to prohibit actions, i.e. re-subdividing
the property or installing a modular home, that was not expressly prohibited by the plain
language of the covenants. In this case, however, the plain language of the covenants at issue
expressly states that the home to be constructed on Lot #2 is to utilize a “conventional”
subsurface sewage system. As previously discussed, the Court cannot construe a restrictive
covenant “to defeat the plain and obvious purposes of a restriction.” 20 Am. Jur. 2d
Covenants, Etc. § 170. Instead, where “the meaning of the language of the [covenant] is
plain” the restriction need not be construed against the grantor and may be enforced as
written. Id. Here, the restrictive covenants contained on the Final Subdivision Plat
“plain[ly] and obvious[ly]” state that the home on Lot #2 is approved for a conventional
subsurface sewage system. Because reference to a conventional system is clearly contained
in the Plat Notes, this Court is not required to extend the covenant at issue by implication
to come to the conclusion that the Plat Notes contemplate the use of a conventional system
for the benefit of the home on Lot #2.
Instead, we agree with the reasoning in Stracener that a restriction that expressly
designates what may be placed on the property operates as a bar to any non-conforming uses
of the property. See Stracener, 737 S.W.2d at 538–39. The plan language of the restrictive
covenants contained on the Final Subdivision Plat clearly states that the Morrows are
approved to install a “conventional” sewage disposal system for the benefit of the home on
Lot#2. Following the reasoning of Stracener, the express designation that the home on Lot
#2 have a “conventional” system is a bar to the installation of any non-conventional system,
i.e. an experimental wetland system. In addition, this restriction applies equally to a system
built on Lot #2 or to one built on the easement on Lot #3 because the plain language states
that the home on Lot #2 is approved for the conventional system, rather than limiting such
restriction to one lot or the other. It is undisputed that any sewage disposal system installed
by the Morrows, whether on Lot #2 or on the easement on Lot #3, would be for the use and
benefit of the home on Lot #2. Accordingly, the restrictive covenants limiting the home on
Lot #2 to the use of a conventional sewage disposal system apply with equal force regardless
of whether the Morrows choose to install the system on Lot #2 or on the easement on Lot
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#3.
The Morrows next argue that, even if the restrictive covenants at issue require the
installation of a conventional system, the court should allow the installation of the
experimental wetland sewage disposal system because this system is consistent with the
purpose of the contract between the Morrows and the Berniers—to allow the Morrows to
build a home on Lot #2 with an adequate, state-approved sewage system— and, therefore,
is not a non-conforming use of the property. To support this argument, the Morrows cite the
recent case of Rogers v. Roach, No. M2011-00794-COA-R3-CV, 2012 WL 2337616 (Tenn.
Ct. App. June 19, 2012). Rogers involved the extent of an egress/ingress easement. The
parties did not dispute that the plaintiff held an implied easement to cross the defendant’s
property on the basis of necessity and prior use. The dispute concerned the width of the
easement and whether the owner of the servient estate was permitted to place a fence close
to the easement, which decreased the useable area of the easement. The trial court dismissed
the plaintiff’s interference claim. The Court of Appeals, however, reversed and remanded
for further proceedings, concluding that the plaintiff had presented evidence establishing the
prima facie elements of her interference claim. In another case, Regen v. East Form Farms
LP, No. M2008-01414-COA-R3-CV, 2009 WL (Tenn. Ct. App. Nov. 4, 2009), this Court
held that an increase in traffic on an easement was not unreasonable because the easement
contained no restrictions regarding the number or type of vehicles that could use the
easement, or any other restrictions from which the Court could conclude that the increased
traffic would create an unreasonable increase in burden on the servient estate. The cases
cited by the Morrows are inapposite to the case-at-bar, however, because they concern only
the unreasonable use of an easement as inferred from the circumstances of the case. In this
case, the Berniers do not argue that the use of the property at issue for a wetland sewage
disposal system is an unreasonable burden, but that the express language of the restrictive
covenants prevents such a use. Accordingly, the reasonableness or unreasonableness of the
use of the property is not at issue. The question in this case simply concerns the plain
language of the Final Subdivision Plat. Regardless of whether any restriction is reasonable
or unreasonable, this Court simply cannot rewrite the parties’ contract. “Our courts will not
rewrite contracts just because they are ill advised or the parties miscalculated future events.”
Wilson v. Scott, 672 S.W.2d 782 (Tenn. Ct. App. 1984). Instead, we must enforce the
contract, or in this case, the restrictive covenant, as written. See Planters Gin Co. v. Fed.
Compress & Warehouse Co., 78 S.W.3d 885, 889–90 (Tenn. 2002). The restrictive
covenants contained on the Final Subdivision Plat expressly require that the sewage disposal
system used by the home on Lot #2 be “conventional.” As previously discussed, it is
undisputed that the experimental wetland sewage disposal system sought by the Morrows
is “experimental,” rather than “conventional.” Accordingly, regardless of whether the use
of the land for a wetland system is reasonable, it is prohibited by the plain language of the
parties’ contract, as evidenced by the Plat Notes. Therefore, the judgment of the trial court
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enjoining the Morrows from installing or constructing an experimental wetland sewage
disposal system on either Lot #2 or the easement on Lot #3 is affirmed.
Finally, we consider the Berniers’ argument that they should be awarded their
attorneys fees on appeal pursuant to Tennessee Code Annotated Section 27-1-122, which
provides:
When it appears to any reviewing court that the appeal from any
court of record was frivolous or taken solely for delay, the court
may, either upon motion of a party or of its own motion, award
just damages against the appellant, which may include but need
not be limited to, costs, interest on the judgment, and expenses
incurred by the appellee as a result of the appeal.
“Imposing a penalty for a frivolous appeal is a remedy which is to be used only in obvious
cases of frivolity and should not be asserted lightly or granted unless clearly applicable,
which is rare.” Henderson v. SAIA, Inc., 318 S.W.3d 328, 342 (Tenn. 2010). Although we
have not decided the issues before us in the Morrow’s favor, we are not persuaded that this
appeal is frivolous or taken solely for delay. We, therefore, decline to award attorney’s fees
to the Berniers.
V. Conclusion
The judgment of the Sumner County Circuit Court is affirmed and this cause is
remanded to the trial court for all further proceedings as may be necessary and are consistent
with this opinion. The costs of this appeal are taxed to Appellants Robert Morrow and Jamie
Morrow, and their surety.
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J. STEVEN STAFFORD, JUDGE
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