Villages of Brentwood Homeowners' Association, Inc. v. Steven J. Westermann and wife Maria A. Westermann ( 1998 )


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  •        IN THE COURT OF APPEALS OF TENNESSEE
    AT NASHVILLE
    FILED
    June 5, 1998
    VILLAGES OF BRENTWOOD            )
    HOMEOWNERS ASSOCIATION, INC.,    )          Cecil W. Crowson
    Appellate Court Clerk
    )
    Plaintiff/Appellee,        )   Davidson Chancery
    )   No. 95-3733-III
    VS.                              )
    )   Appeal No.
    STEVEN J. WESTERMANN and wife    )   01A01-9708-CH-00388
    MARIA A. WESTERMANN,             )
    )
    Defendants/Appellants.     )
    APPEAL FROM THE CHANCERY COURT
    FOR DAVIDSON COUNTY
    AT NASHVILLE, TENNESSEE
    THE HONORABLE ELLEN HOBBS LYLE, CHANCELLOR
    For Plaintiff/Appellee:              For Defendants/Appellants:
    Robert F. Spann                      John A. Ascione
    Nashville, Tennessee                 Nashville, Tennessee
    AFFIRMED AND REMANDED
    WILLIAM C. KOCH, JR., JUDGE
    OPINION
    This appeal involves the enforcement of the restrictive covenants in a Nashville
    subdivision. After two residents began to construct improvements on their property
    without first obtaining approval of the subdivision’s architectural committee, the
    homeowners association filed suit in the Chancery Court for Davidson County
    seeking injunctive relief to enforce the architectural control provisions in the
    subdivision’s restrictive covenants. The trial court heard the case without a jury and
    issued an injunction directing the residents to cease the construction and to restore
    their property to a condition consistent with the subdivision covenants. The residents
    have appealed. Since neither party has filed a verbatim transcript of the proceedings
    or a statement of the evidence, we have reviewed the papers filed in the trial court and
    have determined that they contain no basis for reversing the trial court. Accordingly,
    the trial court’s judgment is affirmed.
    I.
    In March 1993 Steven and Maria Westermann bought a house in a Nashville
    subdivision called the Villages of Brentwood. Their property, like the other property
    in the subdivision, was subject to recorded restrictive covenants governing such
    things as maintenance assessments, dwelling size, and architectural uniformity. One
    of the restrictions required residents desiring to build a fence, wall, or other structure
    on their property to first obtain the approval of the board of directors of the
    homeowners association or an architectural committee appointed by the board.1
    In September 1995 the Westermanns began constructing an in-ground pool, a
    retaining wall, a privacy fence, and an expansion of their deck without first seeking
    1
    Art. V of the Villages of Brentwood restrictive covenants provides in applicable part:
    ARCHITECTURAL CONTROL
    No building, fence, wall or other structure shall be commenced, erected or
    maintained upon the Properties, nor shall any exterior addition to or change,
    including color, or alteration therein be made until the plans and specifications
    showing the nature, kind, shape, height, materials, and location of the same shall
    have been submitted to and approved in writing as to harmony of external design and
    location in relation to surrounding structures and topography by the Board of
    Directors of the Association, or by an architectural committee composed of three (3)
    or more representatives appointed by the Board.
    -2-
    the approval of the homeowners association. Soon after construction began, the
    homeowners association notified the Westermanns in writing that their project
    violated the subdivision’s restrictive covenants because their plans had not been
    reviewed or approved. The homeowners association requested the Westermanns to
    cease construction and to take steps to obtain approval of their project. The
    Westermanns ignored the homeowners association’s letter and continued
    construction.
    The homeowners association sent a second letter to the Westermanns on
    October 19, 1995. When the Westermanns disregarded this letter, the homeowners
    association filed suit on November 29, 1995 in the Chancery Court for Davidson
    County requesting injunctive relief to enforce the subdivision’s restrictive covenants.
    The trial court issued a temporary restraining order stopping the construction.
    Approximately three months later, the trial court entered an order directing the
    Westermanns to submit their plans to the homeowners association for review and
    approval. The Westermanns submitted plans to the homeowners association on
    March 26, 1996. On April 8, 1996, the attorney representing the homeowners
    association informed the Westermanns that their plans were incomplete and requested
    a more complete set of plans. The Westermanns provided new plans on June 7, 1996,
    and on June 26, 1996, the architectural review committee disapproved the
    Westermanns’ project.
    The trial court heard the evidence on December 4, 1996 and entered a detailed
    memorandum opinion on January 24, 1997. The trial court concluded that the
    architectural committee had acted reasonably and in good faith and directed the
    parties to attempt to reach an agreement concerning the Westermanns’ project. After
    the parties were unable to agree to a mutually satisfactory resolution of their
    differences, the trial court entered a final order on April 10, 1997, ordering the
    Westermanns to remove all construction materials from their property and to restore
    the property to a condition consistent with the subdivision’s restrictive covenants.
    II.
    -3-
    We turn first to a preliminary issue concerning the scope of this appeal. Two
    settled principles of appellate review come into play here. First, appellate courts
    cannot review the evidence de novo in accordance with Tenn. R. App. P. 13(d) in the
    absence of a verbatim transcript or statement of the evidence and, therefore, presume
    that a trial court’s order has adequate evidentiary support in the absence of an
    evidentiary record. See Word v. Word, 
    937 S.W.2d 931
    , 932 (Tenn. Ct. App. 1996);
    Sherrod v. Wix, 
    849 S.W.2d 780
    , 783 (Tenn. Ct. App. 1992); Scarbrough v.
    Scarbrough, 
    752 S.W.2d 94
    , 97 (Tenn. Ct. App. 1988). Second, appellate courts will
    ordinarily decline to consider issues being raised for the first time on appeal. See
    Civil Service Merit Bd. v. Burson, 
    816 S.W.2d 725
    , 734-35 (Tenn. 1991); Department
    of Human Servs. v. Defriece, 
    937 S.W.2d 954
    , 960 (Tenn. Ct. App. 1996). Thus,
    arguments not asserted at trial are deemed waived on appeal. See Devorak v.
    Patterson, 
    907 S.W.2d 815
    , 818 (Tenn. Ct. App. 1995).
    Every one of the issues raised by the Westermanns on appeal are affected by
    one or both of these principles. The Westermanns argue for the first time on this
    appeal that the committee should be deemed to have approved their construction
    plans because it did not decline to approve their project within thirty days after they
    first submitted a set of plans on March 26, 1996. Because the record contains no
    indication that they presented this argument to the trial court, we find that they have
    waived their right to assert this issue for the first time on appeal.2 The same fate must
    befall the Westermanns’ argument relating to the speculative nature of the
    architectural committee’s decision because this argument was likewise not presented
    to the trial court.3
    The Westermanns’ remaining issues challenge the reasonableness of the
    architectural committee’s disapproval of their project. The question of whether the
    architectural committee acted reasonably is heavily fact-dependent and must be
    considered in light of the unique circumstances of the case. See Indian Hills Club
    2
    We would reach the same conclusion were we to address the merits of this issue. The thirty-
    day period in Article V of the restrictive covenants did not begin to run on March 26, 1996 because
    the plans submitted to the homeowners association were not complete. After the Westermanns
    submitted a complete set of plans on June 6, 1996, the architectural committee declined to approve
    the plans on June 26, 1996 - well within the thirty-day period.
    3
    In addition, without a factual record, we have no basis for determining that the architectural
    committee acted unreasonably when it determined that the Westermanns’ project would change or
    retard the flow of groundwater, that it would likely have a substantial negative impact on
    neighboring property, and that it could result in the diminution of the value of the adjacent property.
    -4-
    Homeowners Ass’n, Inc. v. Cooper, No. 01A01-9507-CH-00319, 
    1995 WL 763823
    ,
    at *4 (Tenn. Ct. App. Dec. 29, 1995) (No Tenn. R. App. P. 11 application filed). This
    record lacks a verbatim transcript of the proceedings before the trial court or even a
    statement of the evidence. In addition, the record does not contain the exhibits filed
    with and considered by the trial court. Thus, we are unable to examine the review
    criteria used by the architectural committee to determine whether the Westermanns’
    project should be approved. In the absence of this evidentiary material, we are able
    only to review the legal issues raised by the Westermanns that can be decided based
    on the technical record alone.
    III.
    Restrictive covenants conditioning the right of property owners to make
    improvements on the approval of a homeowners association or architectural
    committee are generally valid and enforceable. See Association of Owners of
    Regency Park Condominiums, Inc. v. Thomasson, 
    878 S.W.2d 560
    , 563-565 (Tenn.
    Ct. App. 1994); see also Snowmass Am. Corp. v. Schoenheit, 
    524 P.2d 645
    , 647-48
    (Colo. Ct. App. 1974); Hollingsworth v. Szczesiak, 
    84 A.2d 816
    , 821 (Del. Ch. 1951).
    The prevailing view in this jurisdiction is that these sorts of restrictive covenants will
    be enforced as long as the entity administering them acts reasonably and in good
    faith. See Indian Hills Club Homeowners Ass’n, Inc. v. Cooper, 
    1995 WL 763823
    ,
    at *3.
    Restrictive covenants are enforceable even though they vest discretionary
    powers with the architectural committee. See Country Club of La. Prop. Owners
    Ass’n, Inc. v. Dornier, 
    691 So. 2d 142
    , 150 (La. Ct. App. 1997) (Fitzsimmons, J.,
    concurring). The courts will uphold review criteria as long as they provide a
    reasonable framework for the committee’s decision, see Winslette v. Keeler, 
    137 S.E.2d 288
    , 289 (Ga. 1964), and as long as the committee developing the criteria is
    acting reasonably and in good faith. See Indian Hills Club Homeowners Ass’n, Inc.
    v. Cooper, 
    1995 WL 763823
    , at *4; Country Club of La. Prop. Owners Ass’n, Inc. v.
    
    Dornier, 691 So. 2d at 150
    . When the restrictive covenants establish a review
    committee but do not contain specific criteria for the committee to follow, the validity
    of the criteria and the committee’s interpretation of the criteria will be judged by a
    -5-
    standard of reasonableness. See 4626 Corp. v. Merriam, 
    329 So. 2d 885
    , 889 (La. Ct.
    App. 1976).
    A.
    In light of these authorities, we decline to find as a matter of law that the
    homeowners association of the Villages of Brentwood was acting unreasonably when
    it prepared criteria that would be used to determine the acceptability of proposed
    improvements to houses in the subdivision. On the contrary, we find that the
    homeowners association could establish criteria as long as they were consistent with
    Article V of the restrictive covenants that permits considering the “nature, kind,
    shape, height, materials, and location” of proposed buildings, fences, walls, or other
    structures. Because the review criteria employed by the Villages of Brentwood are
    not in the appellate record, we will presume they are consistent with the restrictive
    covenants, that they are reasonable, and that they provided a reasonable basis for the
    architectural committee’s decision.
    The Westermanns’ ignorance of the existence or substance of the review
    criteria is of little consequence. The restrictive covenants in their deed put them on
    notice that the homeowners association retained the right to approve exterior
    improvements to their property. Had the Westermanns complied with Article V
    before they commenced construction, they would have learned of the review criteria
    and would have been able to conform their improvements to the criteria’s
    requirements. By deciding to proceed with construction without first seeking and
    obtaining the required approvals, the Westermanns assumed the risk that their
    proposed improvements would not be acceptable to the architectural committee.
    B.
    The Westermanns also insist that the architectural committee’s refusal to
    permit them to construct their privacy fence deprives them of the free and full use and
    enjoyment of their property. Specifically, they assert that limiting the height of their
    -6-
    fence to six feet4 is unreasonable because it will interfere with their privacy. Because
    of the sloping elevation of their lot, they insist they should be able to build a fence
    taller than six feet.
    We find it impossible to review this argument based on the record before us.
    The trial court noted that a civil engineer testified that the Westermanns required a
    retaining wall on their property “because of the slope of the yard” and that a retaining
    wall that was six feet high would not “be adequate to retain the proposed
    improvement.” However, we find nothing in the technical record that sheds any light
    on the relationship between the privacy fence, the retaining wall, and the slope of the
    Westermanns’ yard. While the Westermanns state in their brief that “the effect of a
    six feet privacy fence erected at the lower side of [their] yard . . . is reduced
    substantially,” the mere contentions in a party’s brief cannot be considered as
    evidence. See Outpatient Diagnostic Ctr. v. Christian, No. 01A01-9510-CV-00467,
    
    1997 WL 210842
    , at *2 (Tenn. Ct. App. April 30, 1997) (No. Tenn. R. App. P. 11
    application filed). In the absence of an evidentiary record, we are precluded from
    considering this issue. State v. Draper, 
    800 S.W.2d 489
    , 493 (Tenn. Crim. App.
    1990).
    IV.
    We do not have before us a record of the evidence considered by the trial court,
    including the written criteria considered by the architectural committee. The trial
    court had that evidence before it and applied the correct standard of review.
    Accordingly, we will presume that the evidence supported the trial court’s conclusion
    that the architectural committee acted reasonably and in good faith. Based on that
    presumption, we affirm the judgment and remand the case to the trial court for
    whatever further proceedings may be required. We tax the costs of this appeal to
    Steven J. Westermann and Maria A. Westermann and their surety for which
    execution, if necessary, may issue.
    4
    The restrictive covenants do not prescribe specific fence heights; however, Article V
    empowers the architectural committee to consider the “harmony of external design and location in
    relation to surrounding structures.” In light of the trial court’s finding that “all other fences in the
    development are six feet,” we assume the Westermanns are challenging the validity of Article V as
    applied to them.
    -7-
    ______________________________
    WILLIAM C. KOCH, JR., JUDGE
    CONCUR:
    _______________________________
    BEN H. CANTRELL, JUDGE
    __________________________________
    WILLIAM B. CAIN, JUDGE
    -8-