Tyrus C. Ragland and Bonnie S. Ragland, Husband and Wife, and Guy Treece and Marla Treece, Husband and Wife v. Sidney Feuerstein and Betsy Feuerstein

IN THE COURT OF APPEALS OF TENNESSEE
WESTERN SECTION AT JACKSON
TYRUS C. RAGLAND AND BONNIE ) From the Chancery Court
S. RAGLAND, Husband and Wife, ) for Shelby County, Tennessee
and GUY TREECE AND MARLA )
TREECE, Husband and Wife, )
)
Plaintiffs/Appellees, ) The Honorable C. Neal Small, Chancellor
)
vs. )
) Shelby County Chancery No. 103686-1
SIDNEY FEUERSTEIN AND BETSY ) Appeal No. 02A01-9506-CH-00140
FEUERSTEIN, )
) AFFIRMED
Defendants/Appellants. )
)
M. Anderson Cobb, Jr.
W. Marshall Pearson
FILED
) Memphis, Tennnessee
) Plaintiffs/Appellees November 5, 1996
)
) Jack F. Marlow Cecil Crowson, Jr.
Appellate C ourt Clerk
) Memphis, Tennessee
) Attorney for Defendants/Appellants
RULE 10 ORDER AND OPINION
This matter appears appropriate for consideration pursuant to Rule 10(b) of the Rules of the
Court of Appeals of Tennessee.1
Defendant-Appellants Sidney and Betsy Feuerstein (“Feuersteins”) appeal the Chancery
Court’s order in favor of Plaintiff-Appellees Tyrus Ragland and other neighbors enjoining the
Feuersteins from building a greenhouse on their property in violation of a restrictive covenant.
The Feuersteins and the plaintiff neighbors own residences in the Greentrees Subdivision in
Memphis, Shelby County, Tennessee. The deeds to the parties’ residences are subject to the
following restriction:
No structure shall be erected, placed, altered, or permitted to remain on any lot in the
subdivision, other than one detached single-family dwelling of not more than two
stories in height, with one private garage for not more than three (3) cars and one
servant’s house having not more than two rooms and inside toilet. Garage
and servant’s house shall not be more than one story in height.
After the Feuersteins began constructing a greenhouse beside their home, the plaintiff neighbors
1
Rule 10 (Rules of the Court of Appeals of Tennessee). -- (b) Memorandum Opinion. The Court,
with the concurrence of all judges participating in the case, may affirm, reverse or modify the actions
of the trial court by memorandum opinion when a formal opinion would have no precedential value.
When a case is decided by memorandum opinion it shall be designated “MEMORANDUM
OPINION,” shall not be published, and shall not be cited or relied on for any reason in a subsequent
unrelated case.
objected and ultimately filed this lawsuit. At the bench trial, the Feuersteins noted that they had had
an existing greenhouse in the back corner of their yard for fifteen years and asserted that the
restrictive covenant should not be enforced in light of the existing greenhouse and other non-
conforming structures in the neighborhood. The Feuersteins also argued that the plaintiff neighbors
should be denied relief based on the doctrine of laches, because they waited to file their lawsuit until
the Feuersteins had already expended considerable monies on the greenhouse. Finally the
Feuersteins maintained that the greenhouse did not violate the restrictive covenant because it would
be attached to the residence by a covered walkway and would therefore be an addition to the house,
rather than a separate structure.
The trial court rejected the Feuersteins’ argument that the restrictive covenant should not be
enforced because of the existing greenhouse, noting that the greenhouse built fifteen years ago was
on the back corner of the lot, obscured by vegetation, while the proposed greenhouse was to be
beside the Feuersteins’ home, in a location much more visible and likely to affect the value of
neighbors’ property. The trial court found that the neighbors acted in a reasonably timely manner
in detecting the building of the greenhouse and complaining about it, and found the Feuersteins’
laches argument without merit. Finally, the trial court found that simply building a covered walkway
between the greenhouse and the residence did not change the character of the greenhouse as a
separate structure which violated the restrictive covenant. Consequently, the trial court entered an
order requiring the Feuersteins to remove the portion of the proposed greenhouse that had already
been constructed and permanently enjoining them from constructing any other structures on their
property which were not in compliance with the subdivision restrictions.
In this appeal, the Feuersteins assert that the trial court erred in finding that the existence of
the greenhouse in the back corner of the property and other alleged non-conforming uses did not bar
enforcement of the restrictive covenant as to the proposed greenhouse. The Feuersteins also contend
that the trial court erred in finding that the doctrine of laches did not apply. Finally the Feuersteins
maintain that the trial court erred in not finding that the proposed covered walkway made the
greenhouse an addition to the residence, not subject to the restrictive covenant.
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Our review of the trial court’s order is de novo upon the record with a presumption of
correctness of the findings of fact by the trial court. Tenn. R. App. P. 13(d). In addition, the
Chancellor’s determination on questions of laches and estoppel “ ‘will not be reversed on appeal
unless . . . clearly shown to be wrong.’ ” Hannewald v. Fairfield Communities, Inc., 651 S.W.2d
222, 228 (Tenn. App. 1983) (quoting Freeman v. Martin Robowash, Inc., 61 Tenn. App. 677, 690-
91, 457 S.W.2d 606, 612 (1970)).
From our review of the record in this cause, the evidence preponderates in favor of the trial
court’s finding that the existence of the greenhouse in the back corner of the Feuersteins’ property
does not bar the plaintiff neighbors from enforcing the restrictive covenant. Further, the evidence
preponderates in favor of the Chancellor’s finding that the plaintiff neighbors acted in a timely
manner to detect the construction of the greenhouse, object to it and file this lawsuit. Therefore, the
doctrine of laches is inapplicable. Finally, the evidence preponderates in favor of the trial court’s
determination that the proposed greenhouse would violate the restrictive covenant, regardless of
whether a covered walkway connects the greenhouse and the residence. Therefore, the trial court
appropriately ordered removal of the partial construction of the greenhouse and an injunction against
construction of any other structures in violation of the subdivision restriction.
The decision of the trial court is affirmed. Costs are taxed to the Appellant, for which
execution may issue if necessary.
HOLLY KIRBY LILLARD, J.
CONCUR:
ALAN E. HIGHERS, J.
DAVID R. FARMER, J.
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